Exhibit 10.20


 


CONFORMED COPY


 


CREDIT AGREEMENT


 


dated as of July 25, 2008


 


among


 


TICKETMASTER,


as Borrower,


 


CERTAIN SUBSIDIARIES OF THE BORROWER,


as Guarantors,


 


THE LENDERS PARTY HERETO,


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent and Collateral Agent,


 


MERRILL LYNCH CAPITAL CORPORATION,


as Syndication Agent,


 


BANK OF AMERICA, N.A.,


BARCLAYS BANK PLC,


MORGAN STANLEY SENIOR FUNDING INC.,


and


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents,


 


J.P. MORGAN SECURITIES INC.,


and


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


as Joint Lead Arrangers


 


and


 


J.P. MORGAN SECURITIES INC.,


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


BANC OF AMERICA SECURITIES LLC,


BARCLAYS CAPITAL,


MORGAN STANLEY & CO. INCORPORATED


and


WACHOVIA CAPITAL MARKETS, LLC


as Joint Bookrunners


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Interpretative Provisions

  	
  40

  
	
  1.03

  	
  Accounting Terms and Provisions

  	
  40

  
	
  1.04

  	
  Rounding

  	
  41

  
	
  1.05

  	
  Times of Day

  	
  42

  
	
  1.06

  	
  Exchange Rates; Currency Equivalents

  	
  42

  
	
  1.07

  	
  Additional Alternative Currencies

  	
  42

  
	
  1.08

  	
  Additional Borrowers

  	
  42

  
	
  1.09

  	
  Change of Currency

  	
  43

  
	
  1.10

  	
  Letter of Credit Amounts

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  COMMITMENTS AND CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments

  	
  43

  
	
  2.02

  	
  Borrowings, Conversions and Continuations

  	
  49

  
	
  2.03

  	
  Additional Provisions with Respect to
  Letters of Credit

  	
  50

  
	
  2.04

  	
  Additional Provisions with Respect to
  Swingline Loans

  	
  58

  
	
  2.05

  	
  Repayment of Loans

  	
  60

  
	
  2.06

  	
  Prepayments

  	
  61

  
	
  2.07

  	
  Termination or Reduction of Commitments

  	
  65

  
	
  2.08`

  	
  Interest

  	
  65

  
	
  2.09

  	
  Fees

  	
  66

  
	
  2.10

  	
  Computation of Interest and Fees

  	
  67

  
	
  2.11

  	
  Payments Generally; Administrative Agent’s
  Clawback

  	
  68

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  70

  



 


i

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  2.13

  	
  Evidence of Debt

  	
  70

  
	
  2.14

  	
  CAM Exchange

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  72

  
	
  3.02

  	
  Illegality

  	
  75

  
	
  3.03

  	
  Inability to Determine Rates

  	
  75

  
	
  3.04

  	
  Increased Cost; Capital Adequacy

  	
  76

  
	
  3.05

  	
  Compensation for Losses

  	
  77

  
	
  3.06

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
  78

  
	
  3.07

  	
  Survival Losses

  	
  79

  
	
  3.08

  	
  Additional Reserve Costs

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  GUARANTY

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  The Guaranty

  	
  79

  
	
  4.02

  	
  Obligations Unconditional

  	
  80

  
	
  4.03

  	
  Reinstatement

  	
  81

  
	
  4.04

  	
  Certain Waivers

  	
  81

  
	
  4.05

  	
  Remedies

  	
  82

  
	
  4.06

  	
  Rights of Contribution

  	
  82

  
	
  4.07

  	
  Guaranty of Payment; Continuing Guaranty

  	
  82

  
	
  4.08

  	
  Joint and Several Liability of the Borrower

  	
  82

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Conditions to Closing Date

  	
  83

  
	
  5.02

  	
  Conditions to the Funding Date

  	
  84

  
	
  5.03

  	
  Conditions to All Credit Extensions

  	
  87

  



 


ii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  88

  
	
  6.02

  	
  Authorization; No Contravention

  	
  88

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  88

  
	
  6.04

  	
  Binding Effect

  	
  88

  
	
  6.05

  	
  Financial Statements

  	
  88

  
	
  6.06

  	
  No Material Adverse Effect

  	
  89

  
	
  6.07

  	
  Litigation

  	
  89

  
	
  6.08

  	
  No Default

  	
  89

  
	
  6.09

  	
  Ownership of Property; Liens

  	
  90

  
	
  6.10

  	
  Taxes

  	
  90

  
	
  6.11

  	
  ERISA Compliance

  	
  90

  
	
  6.12

  	
  Subsidiaries

  	
  91

  
	
  6.13

  	
  Margin Regulations; Investment Company Act

  	
  91

  
	
  6.14

  	
  Disclosure

  	
  91

  
	
  6.15

  	
  Compliance with Laws

  	
  92

  
	
  6.16

  	
  Solvency

  	
  92

  
	
  6.17

  	
  Intellectual Property; Licenses, Etc.

  	
  92

  
	
  6.18

  	
  Security Agreement

  	
  92

  
	
  6.19

  	
  Pledge Agreement

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Financial Statements

  	
  93

  
	
  7.02

  	
  Certificates; Other Information

  	
  94

  
	
  7.03

  	
  Notification

  	
  96

  
	
  7.04

  	
  Preservation of Existence

  	
  97

  
	
  7.05

  	
  Payment of Taxes and Other Obligations

  	
  97

  
	
  7.06

  	
  Compliance with Law

  	
  97

  



 


iii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.07

  	
  Maintenance of Property

  	
  97

  
	
  7.08

  	
  Insurance

  	
  97

  
	
  7.09

  	
  Books and Records

  	
  98

  
	
  7.10

  	
  Inspection Rights

  	
  98

  
	
  7.11

  	
  Use of Proceeds

  	
  98

  
	
  7.12

  	
  Joinder of Subsidiaries as Guarantors

  	
  98

  
	
  7.13

  	
  Pledge of Capital Stock

  	
  99

  
	
  7.14

  	
  Pledge of Other Property

  	
  100

  
	
  7.15

  	
  Further Assurances Regarding Collateral

  	
  100

  
	
  7.16

  	
  Post-Closing Matters

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Liens

  	
  101

  
	
  8.02

  	
  Investments

  	
  104

  
	
  8.03

  	
  Indebtedness

  	
  106

  
	
  8.04

  	
  Mergers and Dissolutions

  	
  109

  
	
  8.05

  	
  Dispositions

  	
  110

  
	
  8.06

  	
  Restricted Payments

  	
  110

  
	
  8.07

  	
  Change in Nature of Business

  	
  111

  
	
  8.08

  	
  Change in Accounting Practices or Fiscal
  Year

  	
  112

  
	
  8.09

  	
  Transactions with Affiliates

  	
  112

  
	
  8.10

  	
  Financial Covenants

  	
  112

  
	
  8.11

  	
  Limitation on Subsidiary Distributions

  	
  112

  
	
  8.12

  	
  Spin-Off

  	
  113

  
	
  8.13

  	
  Transfers/Investments with Respect to
  Certain Subsidiaries

  	
  114

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  
	
  EVENTS OF DEFAULT AND REMEDIES

  
	
   

  
	
  9.01

  	
  Events of Default

  	
  114

  
	
  9.02

  	
  Remedies upon Event of Default

  	
  116

  



 


iv

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.03

  	
  Application of Funds

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  AGENTS

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Appointment and Authorization of
  Administrative Agent and Collateral Agent

  	
  118

  
	
  10.02

  	
  Rights as a Lender

  	
  119

  
	
  10.03

  	
  Exculpatory Provisions

  	
  119

  
	
  10.04

  	
  Reliance by Administrative Agent and
  Collateral Agent

  	
  120

  
	
  10.05

  	
  Delegation of Duties

  	
  121

  
	
  10.06

  	
  Resignation of the Administrative Agent or
  the Collateral Agent

  	
  121

  
	
  10.07

  	
  Non-Reliance on Administrative Agent,
  Collateral Agent and Other Lenders

  	
  122

  
	
  10.08

  	
  No Other Duties

  	
  122

  
	
  10.09

  	
  Administrative Agent or Collateral Agent
  May File Proofs of Claim

  	
  122

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  123

  
	
  10.11

  	
  Withholding Tax

  	
  124

  
	
  10.12

  	
  Treasury Management Agreements and Swap
  Contracts

  	
  124

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  11.01

  	
  Amendments, Etc.

  	
  125

  
	
  11.02

  	
  Notices; Effectiveness; Electronic
  Communication

  	
  128

  
	
  11.03

  	
  No Waiver; Cumulative Remedies; Enforcement

  	
  130

  
	
  11.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  131

  
	
  11.05

  	
  Payments Set Aside

  	
  133

  
	
  11.06

  	
  Successors and Assigns

  	
  133

  
	
  11.07

  	
  Treatment of Certain Information;
  Confidentiality

  	
  139

  
	
  11.08

  	
  Right of Setoff

  	
  140

  
	
  11.09

  	
  Interest Rate Limitation

  	
  140

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  141

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  141

  
	
  11.12

  	
  Severability

  	
  141

  



 


v

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  11.13

  	
  Replacement of Lenders

  	
  141

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  143

  
	
  11.15

  	
  Waiver of Jury Trial

  	
  144

  
	
  11.16

  	
  USA PATRIOT Act Notice

  	
  144

  
	
  11.17

  	
  Designation as Senior Debt

  	
  144

  
	
  11.18

  	
  No Advisory or Fiduciary Responsibility

  	
  144

  



 


vi

















 


SCHEDULES


 


	
  Schedule
  1.01A

  	
   

  	
  Existing
  Letters of Credit

  
	
  Schedule
  1.01B

  	
   

  	
  Funding
  Date Guarantors

  
	
  Schedule
  2.01

  	
   

  	
  Lenders
  and Commitments

  
	
  Schedule
  2.09(c)

  	
   

  	
  Funding
  Fees

  
	
  Schedule
  3.08

  	
   

  	
  Mandatory
  Cost Rate

  
	
  Schedule
  5.01(c)(ii)

  	
   

  	
  Scheduled
  Matters

  
	
  Schedule
  6.12

  	
   

  	
  Subsidiaries

  
	
  Schedule
  7.08

  	
   

  	
  Insurance

  
	
  Schedule
  8.01

  	
   

  	
  Existing
  Liens

  
	
  Schedule
  8.02

  	
   

  	
  Existing
  Investments

  
	
  Schedule
  8.03

  	
   

  	
  Existing
  Indebtedness

  
	
  Schedule
  11.02

  	
   

  	
  Notice
  Addresses

  



 


EXHIBITS


 


	
  Exhibit 1.01A

  	
   

  	
  Form of
  Pledge Agreement

  
	
  Exhibit 1.01B

  	
   

  	
  Form of
  Security Agreement

  
	
  Exhibit 2.02

  	
   

  	
  Form of
  Loan Notice

  
	
  Exhibit 2.13-1

  	
   

  	
  Form of
  Dollar Revolving Note

  
	
  Exhibit 2.13-2

  	
   

  	
  Form of
  Approved Currency Revolving Note

  
	
  Exhibit 2.13-3

  	
   

  	
  Form of
  Swingline Note

  
	
  Exhibit 2.13-4

  	
   

  	
  Form of
  Term A Note

  
	
  Exhibit 2.13-5

  	
   

  	
  Form of
  Term B Note

  
	
  Exhibit 3.01(e)

  	
   

  	
  Form of
  Non-Bank Certificate

  
	
  Exhibit 7.02(b)

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit 7.12

  	
   

  	
  Form of
  Joinder Agreement

  
	
  Exhibit 11.06

  	
   

  	
  Form of Assignment
  and Assumption

  



 


vii














 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (this “Credit Agreement”) is entered into as of July 25,
2008, among TICKETMASTER, a Delaware corporation (the “Borrower”), the
Guarantors identified herein, the Lenders party hereto, and JPMORGAN CHASE
BANK, N.A., as Administrative Agent and Collateral Agent.


 


W I T N E S S E T H


 


WHEREAS,
the Borrower and the Guarantors have requested that the Lenders provide
revolving credit and term loan facilities for the purposes set forth herein;
and


 


WHEREAS,
the Lenders have agreed to make the requested facilities available on the terms
and conditions set forth herein;


 


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


 


ARTICLE
I


 


DEFINITIONS
AND ACCOUNTING TERMS


 


1.01        Defined
Terms.


 


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


 


“Acquisition”
means the purchase or acquisition (whether in one or a series of related
transactions) by any Person of (a) more than fifty percent (50%) of the
Capital Stock with ordinary voting power of another Person or (b) all or
substantially all of the property (other than Capital Stock) of another Person
or division or line of business or business unit of another Person, whether or
not involving a merger or consolidation with such Person.


 


“Adjusted Eurodollar Rate” means,
with respect to any Borrowing of Eurodollar Rate Loans for any Interest Period,
(a) an interest rate per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Rate for such Borrowing of Eurodollar Rate Loans in effect for
such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Borrowing of
Eurodollar Rate Loans for such Interest Period.


 


“Administrative
Agent” means JPMCB in its capacity as administrative agent for the Lenders
under any of the Credit Documents, or any successor administrative agent.


 


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


 

















 


“Administrative
Questionnaire” means an administrative questionnaire for the Lenders 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.


 


“Agent”
means either of the Administrative Agent or the Collateral Agent.


 


“Aggregate
Approved Currency Revolving Commitments” means the Approved Currency Revolving
Commitments of all the Lenders.


 


“Aggregate
Approved Currency Revolving Committed Amount” has the meaning provided in Section 2.01(a)(ii).


 


“Aggregate
Commitment Percentage” means, for each Lender, a fraction (expressed as a
percentage carried to the ninth decimal place), the numerator of which is the
amount of such Lender’s respective Revolving Commitment, Term A Loan Commitment
and Term B Loan Commitment and the denominator of which is the Aggregate
Commitments.


 


“Aggregate
Commitments” means the aggregate principal amount of the Revolving
Commitments, Term A Loan Commitments and Term B Loan Commitments.


 


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


 


“Aggregate
Dollar Revolving Committed Amount” has the meaning provided in Section 2.01(a)(i).


 


“Aggregate
Revolving Commitments” means the collective reference to the Aggregate
Dollar Revolving Commitments and the Aggregate Approved Currency Revolving
Commitments.


 


“Aggregate
Revolving Committed Amount” means the collective reference to the Aggregate
Dollar Revolving Committed Amount and the Aggregate Approved Currency Revolving
Committed Amount.


 


“Aggregate
Term A Loan Committed Amount” means one hundred million Dollars ($100.0 million).


 


“Aggregate
Term B Loan Committed Amount” means three hundred fifty million Dollars
($350.0 million).


 


“Alternative
Currency” means each of Euros, Canadian Dollars and Sterling and any other
currency added as an “Alternative Currency” pursuant to Section 1.07
hereof.


 


“Alternative
Currency Equivalent” means, at any time, with respect to any amount denominated
in Dollars, the equivalent amount thereof in the applicable Alternative Currency
as 


 


2

















 


reasonably determined by the Administrative Agent or
the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.


 


“Applicable
Percentage” means (i) with respect to Term B Loans, (x) 3.25% in
the case of Eurodollar Rate Loans and (y) 2.25% in the case of Base Rate
Loans and (ii) with respect to Revolving Loans, Swingline Loans, Letter of
Credit Fees and Term A Loans the following percentages per annum:


 


APPLICABLE PERCENTAGES
FOR REVOLVING LOANS, SWINGLINE LOANS,

LETTER OF CREDIT FEES AND TERM A LOANS


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Total

  Leverage

  Ratio

  	
   

  	
  Eurodollar Rate

  Loans (other

  than for

  Revolving

  Loans)

  	
   

  	
  Base Rate

  Loans (other

  than for

  Revolving

  Loans)

  	
   

  	
  Eurodollar

  Rate Loans

  (for Revolving

  Loans) and

  Letter of

  Credit Fees

  	
   

  	
  Base Rate

  Loans

  (for

  Revolving

  Loans)

  	
   

  
	
  I

  	
   

  	
  < 1.50:1.00

  	
   

  	
  2.25%

  	
   

  	
  1.25%

  	
   

  	
  1.75%

  	
   

  	
  0.75%

  	
   

  
	
  II

  	
   

  	
  > 1.50
  but

  < 2.25:1.00

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  	
   

  	
  2.00%

  	
   

  	
  1.00%

  	
   

  
	
  III

  	
   

  	
  > 2.25 but

  < 3.00:1.00

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  	
  2.25%

  	
   

  	
  1.25%

  	
   

  
	
  IV

  	
   

  	
  > 3.00:1.00

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  	
   

  



 


Applicable
Percentages for Revolving Loans, Swingline Loans, Letter of Credit Fees and
Term A Loans will be based on the Consolidated Total Leverage Ratio as set
forth in the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 7.02(b). Any increase or decrease in such
Applicable Percentage resulting from a change in the Consolidated Total
Leverage Ratio shall become effective on the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 7.02(b);
provided, however, that if (i) a Compliance Certificate is
not delivered when due in accordance therewith or (ii) an Event of Default
pursuant to Section 9.01(a), (f) or (h) has
occurred and is continuing, then, in the case of clause (i) pricing
level IV shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until the first
Business Day immediately following delivery thereof, and in the case of clause
(ii) pricing level IV shall apply as of the first Business Day after
the occurrence of such Event of Default until the first Business Day immediately
following the cure or waiver of such Event of Default.  The Applicable Percentage in effect from the
Closing Date through the date for delivery of the Compliance Certificate for
the first full fiscal quarter ending after the Closing Date shall be determined
based upon pricing level III for Revolving Loans, Swingline Loans, Letter of
Credit Fees and Term A Loans.


 


3

















 


Determinations
by the Administrative Agent of the appropriate pricing level shall be conclusive
absent manifest error.


 


In the
event that any financial statement or Compliance Certificate delivered pursuant
to Section 7.01 or 7.02 is shown to be inaccurate
(regardless of whether this Credit Agreement or the Commitments are in effect
or any Loans are outstanding when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Percentage for any period (an “Applicable Period”) than the
Applicable Percentage applied for such Applicable Period, and only in such
case, then the Borrower shall immediately (i) deliver to the
Administrative Agent a corrected Compliance Certificate for such Applicable
Period, (ii) determine the Applicable Percentage for such Applicable
Period based upon the corrected Compliance Certificate, and (iii) immediately
pay to the Administrative Agent the accrued additional interest owing as a
result of such increased Applicable Percentage for such Applicable Period,
which payment shall be promptly applied by the Administrative Agent in
accordance with Section 2.11. 
The rights of the Administrative Agent and Lenders pursuant to this paragraph
are in addition to rights of the Administrative Agent and Lenders with respect
to Sections 2.08(b) and 9.02 and other of their respective
rights under the Credit Documents.


 


“Applicable
Period” has the meaning assigned to such term in the definition of Applicable
Percentage.


 


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


 


“Approved
Currency” means each of Dollars and each Alternative Currency.


 


“Approved
Currency Revolving Commitment” means, for each Lender, the commitment of
such Lender to make Approved Currency Revolving Loans hereunder.


 


“Approved
Currency Revolving Commitment Percentage” means, for each Approved Currency
Revolving Lender, a fraction (expressed as a percentage carried to the ninth
decimal place), the numerator of which is such Approved Currency Revolving
Lender’s Approved Currency Revolving Committed Amount and the denominator of
which is the Aggregate Approved Currency Revolving Committed Amount.  The initial Approved Currency Revolving Commitment
Percentages are set forth in Schedule 2.01.


 


“Approved
Currency Revolving Committed Amount” means, for each Approved Currency
Revolving Lender, the amount of such Lender’s Approved Currency Revolving Commitment.  The initial Approved Currency Revolving
Committed Amounts are set forth in Schedule 2.01.


 


“Approved Currency Revolving Facility”
means the Aggregate Approved Currency Revolving Commitments and the provisions
herein related to the Approved Currency Revolving Loans.


 


4

















 


“Approved
Currency Revolving Facility Fee” has the meaning provided in Section 2.09(a).


 


“Approved
Currency Revolving Lenders” means those Lenders with Approved Currency
Revolving Commitments, together with their successors and permitted
assigns.  The initial Approved Currency
Revolving Lenders are identified in Schedule 2.01.


 


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


 


“Approved
Currency Revolving Notes” means the promissory notes, if any, given to evidence
the Approved Currency Revolving Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced. 
A form of Approved Currency Revolving Note is attached as Exhibit 2.13-2.


 


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


 


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


 


“Attributable
Principal Amount” means (a) in the case of capital leases, the amount
of capital lease obligations determined in accordance with GAAP, (b) in
the case of Synthetic Leases, an amount determined by capitalization of the
remaining lease payments thereunder as if it were a capital lease determined in
accordance with GAAP, and (c) in the case of Sale and Leaseback
Transactions, the present value (discounted in accordance with GAAP at the debt
rate implied in the applicable lease) of the obligations of the lessee for
rental payments during the term of such lease).


 


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


 


“Base
Rate” means (i) in the case of Loans denominated in Dollars 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” in effect at its principal office in New York City and (ii) in the
case of Loans denominated in Canadian Dollars the greater of (a) the rate
of interest publicly announced from time to time by JPMorgan Chase Bank, N.A.,
Toronto Branch as its reference rate of interest for loans made in Canadian
Dollars to Canadian customers and designed as its “prime” rate and (b) the
rate of interest per annum equal to the average annual yield rate for one-month
Canadian Dollar bankers’ acceptances (expressed for such purposes as a yearly
rate per annum) which is shown on the “CDOR Page” (or any substitute) at 10:00 A.M.
(Toronto time) on such day (or if not a Business Day, the preceding Business
Day), plus 0.75% per annum.  The “prime
rate” is a rate set by JPMCB or JPMorgan Chase Bank, N.A., Toronto Branch, as
applicable based upon various factors including its 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 


 


5

















 


below such announced rate.  Any change in such rate announced by JPMCB or
JPMorgan Chase Bank, N.A., Toronto Branch 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.


 


“BCV”
means Broadway China Ventures, LLC.


 


“Borrower”
has the meaning provided in the recitals hereto, together with its successors
and permitted assigns pursuant to Section 8.04.


 


“Borrowing”
means (a) a borrowing consisting of simultaneous Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period, or (b) a
borrowing of Swingline Loans, as appropriate.


 


“Business
Day” means any day (other than a day which is a Saturday, Sunday, or other
day on which banks in New York are authorized or required by law to close); provided,
however, that (a) when used in connection with a rate determination,
borrowing, or payment in respect of a Eurodollar Rate Loan, the term “Business
Day” shall also exclude any day on which banks in London, England are not open
for dealings in deposits of Dollars or foreign currencies, as applicable, in
the London Interbank Market, (b) if such day relates to any dealings in
any currency other than Dollars to be carried out pursuant to this Credit
Agreement, the term “Business Day” shall also exclude any day on which banks
are not open for foreign exchange dealings between banks in the home country of
such foreign currency.


 


“Canadian
Dollars” and “C$” means the lawful currency of Canada.


 


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


 


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


 


“Cash
Equivalents” means (a) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than twelve (12) months from the date of
acquisition, (b) Dollar-denominated time deposits, money market deposits
and certificates of deposit of (i) any Lender that accepts such deposits
in the ordinary course of such Lender’s business, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500.0 million or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or from Moody’s is at least P-1, in each case with
maturities of not more than two hundred seventy (270) days from the date of
acquisition, (c) commercial paper issued by any issuer bearing at least an
“A-2” rating for any short-term rating provided by S&P and/or Moody’s and
maturing within two hundred seventy (270) days of the date of acquisition, (d) repurchase
agreements entered into by the Borrower with a bank or trust 


 


6

















 


company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500.0 million for
direct obligations issued by or fully guaranteed by the United States and
having, on the date of purchase thereof, a fair market value of at least one hundred
percent (100%) of the amount of the repurchase obligations, (e) Investments
(classified in accordance with GAAP as current assets) in money market
investment programs registered under the Investment Company Act of 1940, as
amended, that are administered by reputable financial institutions having
capital and surplus of at least $500.0 million and the portfolios of which are
limited to Investments of the character described in the foregoing subclauses
hereof, (f) shares of mutual funds if no less than 95% of such funds’
investments satisfy the provisions of clauses (a) through (e) above,
and (g) in the case of any Foreign Subsidiary, short-term investments of
comparable credit quality and tenor to those referred to in clauses (a) through
(f) above which are customarily used for cash management purposes
in any country in which such Foreign Subsidiary operates.


 


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


 


“Change
of Control” means an event or series of events by which:


 


(a)           any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) other than a
Permitted Holder becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly,
of forty percent (40%) or more of the equity securities of the Borrower
entitled to vote for members of the board of directors or equivalent governing
body of the Borrower on a fully diluted basis;


 


(b)           during any period of
twelve (12) consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by a Permitted Holder or
by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both clauses
(ii) and (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing body occurs
as a result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group other
than a solicitation for the election of one (1) or more directors by or on
behalf of the board of directors); or


 


7

















 


(c)           a “change of control”
or any comparable term under, and as defined in, any of the documentation
relating to the Senior Notes shall have occurred.


 


“Closing
Date” means the date hereof.


 


“Collateral”
means the collateral identified in, and at any time covered by, the Collateral
Documents.


 


“Collateral
Agent” means JPMCB in its capacity as collateral agent for the Lenders
under any of the Collateral Documents, or any successor collateral agent.


 


“Collateral
Documents” means the Security Agreement, the Pledge Agreement, the
Mortgages and any other documents executed and delivered in connection with the
attachment and perfection of security interests granted to secure the
Obligations.


 


“Commitment
Fees” has the meaning provided in Section 2.09(a).


 


“Commitment
Letter” means the Commitment Letter dated as of June 19, 2008 among
the Borrower, JPMCB, the Lead Arrangers and the other parties thereto, together
with all schedules and annexes thereto, as amended to the date hereof.


 


“Commitment
Percentage” means the Revolving Commitment Percentage, the Term A Loan
Commitment Percentage or the Term B Loan Commitment Percentage, as appropriate.


 


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


 


“Commitments”
means the Revolving Commitments, the L/C Commitments, the Swingline Commitment,
the Term A Loan Commitments and the Term B Loan Commitments.


 


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


 


“Consolidated
Capital Expenditures” means, for any period for the Consolidated Group,
without duplication, all expenditures with respect to property, plant and
equipment during such period which should be capitalized in accordance with
GAAP (including the Attributable Principal Amount of capital leases).


 


“Consolidated
EBITDA” means, for any period for the Consolidated Group, Consolidated Net
Income in such period plus, without duplication, (A) in each case
solely to the extent decreasing Consolidated Net Income in such period: (a) Consolidated
Interest Expense (without giving effect to the second proviso of the definition
of Consolidated Interest Expense), (b) provision for taxes, to the extent
based on income or profits, (c) amortization and depreciation, (d) the
amount of all expenses incurred in connection with the closing and funding of
this Credit Agreement, the Senior Notes or the Transactions, (e) the
amount of all non-cash deferred compensation 


 


8

















 


expense, (f) the amount of all expenses
associated with the early extinguishment of Indebtedness permitted hereunder
incurred, (g) any losses from sales of Property, other than from sales in
the ordinary course of business, (h) any non-cash impairment loss of
goodwill or other intangibles required to be taken pursuant to GAAP, (i) any
non-cash expense recorded with respect to stock options or other equity-based
compensation, (j) any extraordinary loss in accordance with GAAP, (k) any
restructuring, non-recurring or other unusual item of loss or expense
(including write-offs and write-downs of assets), other than any write-off or
write-down of inventory or accounts receivable; provided that the
aggregate amount of any such losses or expenses in cash shall not exceed $25.0
million in any four quarter period ending on or prior to September 30,
2009 and $6.0 million in any four quarter period ending thereafter, (l) any
non-cash loss related to discontinued operations and (m) any other
non-cash charges (other than write-offs or write-downs of inventory or accounts
receivable); provided that, in the case of any non-cash charge referred
to in this definition of Consolidated EBITDA that relates to accruals or
reserves for a future cash disbursement, such future cash disbursement shall be
deducted from Consolidated EBITDA in the period when such cash is so disbursed;
minus (B) in each case solely to the extent increasing Consolidated
Net Income in such period:  (a) any
extraordinary gain in accordance with GAAP, (b) any nonrecurring item of
gain or income (including write-ups of assets), other than any write-up of inventory
or accounts receivable, (c) any gains from sales of Property, other than
from sales in the ordinary course of business, (d) any non-cash gain
related to discontinued operations, and (e) the aggregate amount of all
other non-cash items increasing Consolidated Net Income during such period; provided
that in the case of any non-cash item referred to in clause (B) of
this definition of Consolidated EBITDA that relates to a future cash payment to
the Borrower or a Subsidiary, such future cash payment shall be added to Consolidated
EBITDA in the period when such payment is so received by the Borrower or such
Subsidiary.


 


Subject
to the following sentence, Consolidated EBITDA for the fiscal quarters ended September 30,
2007, December 31, 2007 and March 31, 2008 shall be deemed to be
$66.8 million, $80.2 million and $70.2 million, respectively.  Without duplication of any pro forma adjustments
reflected in the amounts set forth in the immediately preceding sentence,
Consolidated EBITDA for any period shall be calculated on a Pro Forma Basis
pursuant to Section 1.03(b).


 


“Consolidated
Excess Cash Flow” means, for any period for the Consolidated Group, (a) net
cash provided by operating activities for such period as reported on the
audited GAAP cash flow statement delivered under Section 7.01(a) minus
(b) the sum of, in each case to the extent not otherwise reducing net cash
provided by operating activities in such period, without duplication, (i) scheduled
principal payments and payments of interest in each case made in cash on Consolidated
Total Funded Debt during such period (including for purposes hereof, sinking
fund payments, payments in respect of the principal components under capital
leases and the like relating thereto), in each case other than in connection
with a refinancing thereof, (ii) Consolidated Capital Expenditures made in
cash during such period that are not financed with the proceeds of
Indebtedness, an issuance of Capital Stock or from a reinvestment of Net Cash
Proceeds referred to in Section 2.06(b)(ii), (iii) optional prepayments
of Funded Debt during such period (other than prepayments of Revolving Loans owing
under this Credit Agreement (unless, in the case of a prepayment of Revolving
Loans, there is a simultaneous reduction in the Aggregate Revolving Commitments
in the amount of such prepayment pursuant to Section 2.07) and
other such optional prepayments made with the proceeds of other Indebtedness), (iv) to
the extent not financed 


 


9

















 


with the incurrence or assumption of Indebtedness or
proceeds from an issuance of Capital Stock, Subject Dispositions, Specified
Dispositions or Involuntary Dispositions, cash sums expended for Investments
pursuant to Sections 8.02(c), (i), (j), (k) (other
than with respect to any amount expended on such Investments through the use of
the Cumulative Credit) or (v) during such period, (v) without
duplication of amounts deducted from Consolidated Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by the
Borrower or any Subsidiary pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Consolidated Capital Expenditures to be consummated or made during the three
months following the end of such period, provided that to the extent the
aggregate amount of internally generated cash actually utilized to finance such
Consolidated Capital Expenditures during such three months is less than the Contract
Consideration, the amount of such shortfall shall be added to Consolidated
Excess Cash Flow for the period following such period and (vi) to the
extent such amounts increased net cash provided by operating activities in such
period, funds collected by the Borrower or any of its Subsidiaries on behalf of
clients of the Borrower or any of its Subsidiaries representing the face amount of tickets sold
plus (c) to the extent such amounts decreased net cash provided by
operating activities in such period, funds remitted by the Borrower or any of
its Subsidiaries to clients of the Borrower or any of its Subsidiaries representing the face amount of tickets sold.


 


“Consolidated
Group” means the Borrower and its consolidated Subsidiaries, as determined
in accordance with GAAP.


 


“Consolidated
Interest Coverage Ratio” means, as of the last day of each fiscal quarter
for the period of four (4) consecutive fiscal quarters then ending, the
ratio of (i) Consolidated EBITDA of the Consolidated Group to (ii) Consolidated
Interest Expense of the Consolidated Group.


 


“Consolidated
Interest Expense” means, for any period, the sum of the total interest expense
of the Consolidated Group (calculated without regard to any limitations on the
payment thereof) plus, without duplication, the interest component under
capital leases determined on a consolidated basis  minus interest income
determined on a consolidated basis (except to the extent included in the
Borrower’s consolidated revenues in accordance with GAAP); provided that
the amortization of deferred financing, legal and accounting costs with respect
to this Credit Agreement and the Senior Notes shall be excluded from
Consolidated Interest Expense to the extent the same would otherwise have been
included therein; provided  further that subject to adjustment for
events occurring after the Funding Date pursuant to Section 1.03(b),
Consolidated Interest Expense for any period ending prior to the first
anniversary of the Funding Date shall be determined by multiplying (x) Consolidated
Interest Expense from and including the Funding Date to and including the last
day of such period by (y) a fraction, the numerator of which is 365 and
the denominator of which is the number of days in such period.


 


Without
duplication of any of the adjustments reflected in the calculations set forth
in the second proviso of the immediately preceding sentence, Consolidated
Interest Expense shall be calculated on a Pro Forma Basis pursuant to Section 1.03(b).


 


“Consolidated
Net Income” means, for any period for the Consolidated Group, the net income
(or loss), determined on a consolidated basis (after any deduction for minority
interests) of 


 


10

















 


the Consolidated Group in accordance with GAAP, provided
that (i) in determining Consolidated Net Income, the net income of any
other Person which is not a Subsidiary of the Borrower or is accounted for by
the Borrower by the equity method of accounting shall be included only to the
extent of the payment of cash dividends or cash distributions by such other
Person to a member of the Consolidated Group during such period, (ii) the
net income of any Subsidiary of the Borrower (other than a Guarantor) that is
not distributed to the Borrower or a Guarantor shall be excluded to the extent
that the declaration or payment of cash dividends or similar cash distributions
by that Subsidiary of that net income is not at the date of determination
permitted by operation of its Organization Documents or any agreement,
instrument or law applicable to such Subsidiary and (iii) the cumulative
effect of any change in accounting principles shall be excluded.  Consolidated Net Income shall be calculated
on a Pro Forma Basis pursuant to Section 1.03(b).


 


“Consolidated
Total Assets” means the
total assets of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP, as shown on the most recent balance sheet
of the Borrower required to have been delivered pursuant to Section 7.01(a) or
(b) or, for the period prior to the time any such statements are
required to be so delivered pursuant to Section 7.01(a) or (b),
as shown on the financial statements referred to in the first sentence of Section 6.05.


 


“Consolidated
Total Funded Debt” means, at any time, the principal amount of all Funded
Debt of the Consolidated Group at such time determined on a consolidated basis
(it being understood and agreed that outstanding letters of credit shall not
constitute Funded Debt unless such letters of credit have been drawn on by the
beneficiary thereof and the resulting obligations have not been paid by the
Borrower).


 


“Consolidated
Total Leverage Ratio” means, as of the last day of each fiscal quarter, the
ratio of (i) Consolidated Total Funded Debt on such day to (ii) Consolidated
EBITDA of the Consolidated Group for the period of four (4) consecutive
fiscal quarters ending as of such day.


 


“Contract
Consideration” has the meaning assigned to such term in the definition of
Consolidated Excess Cash Flow.


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


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


 


“Credit
Documents” means this Credit Agreement, the Notes, the Collateral
Documents, the Fee Letter, the Issuer Documents, the Joinder Agreements, and
the Revolving Lender Joinder Agreements and the Incremental Term Loan Joinder
Agreement.


 


11














 


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


 


“Credit
Parties” means the Borrower and each Subsidiary of the Borrower that is a
party to a Credit Document (including any Foreign Subsidiary that becomes a
borrower under Section 1.08).


 


“Credit
Party Materials” has the meaning provided in Section 7.02.


 


“Cumulative
Credit” means, with respect to any proposed use of the Cumulative Credit at
any time, an amount equal to (a)(i) the amount of the Consolidated Excess
Cash Flow for each full fiscal quarter of the Borrower completed after the
Funding Date, to the extent the financial statements required to be delivered
for the period ending on the last day of such fiscal quarter pursuant to Section 7.01(a) or
(b) have been delivered and, to the extent the end of such fiscal
quarter coincides with the end of a fiscal year of the Borrower, all
prepayments that may be required pursuant to Section 2.06(b)(iv) with
respect to the Consolidated Excess Cash Flow generated in such fiscal year have
been made (provided that, to the extent the end of any fiscal quarter of
the Borrower does not coincide with the end of a fiscal year of the Borrower,
25% of the Consolidated Excess Cash Flow generated in such fiscal quarter shall
not be counted toward calculating the amount referred to in this clause (a) until
the financial statements for the fiscal year in which fiscal quarter falls have
been delivered pursuant to Section 7.01(a) and all prepayments
that may be required pursuant to Section 2.06(b)(iv) with
respect to the Consolidated Excess Cash Flow generated in such fiscal year have
been made), plus (b) without duplication of any amounts referred to
in clause (d), the aggregate amount of Net Cash Proceeds of any issuance
of Qualified Capital Stock of the Borrower (but not including any issuance or
purchase referred to in Sections 8.02(c), 8.02(r) or 8.06(h))
after the Funding Date and at or prior to such time plus (c) in the
case of a use of the Cumulative Credit to make an Investment pursuant to Section 8.02(k) only,
the amount of Domestic Cash and Foreign Cash plus (d) to the extent
not otherwise reflected in Consolidated Excess Cash Flow, the amount of cash
returns on any Investment made pursuant to Section 8.02(k) (other
than any Investment subsequently deemed to be made pursuant to Section 8.02(e))
in a Person other than the Borrower or a Subsidiary (to the extent such
Investment was made through the use of the Cumulative Credit) resulting from
interest payments, dividends, repayments of loans or advances or profits from
Dispositions of Property, in each case to the extent actually received by the
Borrower or a Guarantor at or prior to such time minus (e) the
aggregate amount of Investments and Restricted Payments made since the Funding
Date pursuant to Sections 8.02(k) (excluding Investments
subsequently deemed to have been made pursuant to Section 8.02(e))
and 8.06(f), respectively, through utilization of the Cumulative Credit
(excluding such proposed use of the Cumulative Credit, but including any other
simultaneous proposed use of the Cumulative Credit) minus (f) the
ECF Application Amount for each fiscal year of the Borrower, to the extent the
financial statements for such fiscal year have been delivered pursuant to Section 7.01(a).


 


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


 


12

















 


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


 


“Default
Rate” means an interest rate equal to (a) with respect to Obligations
other than (i) Eurodollar Rate Loans and (ii) Letter of Credit Fees,
the Base Rate plus the Applicable Percentage, if any, applicable to such
Loans plus two percent (2%) per annum; (b) with respect to
Eurodollar Rate Loans, the Adjusted Eurodollar Rate plus the Applicable
Percentage, if any, applicable to such Loans plus two percent (2%) per
annum; and (c) with respect to Letter of Credit Fees, a rate equal to the
Applicable Percentage plus two percent (2%) per annum.


 


“Defaulting
Lender” means any Lender as of any date of determination that (a) has
failed to fund any portion of the Loans, participations in L/C Obligations or
participations in Swingline Loans required to be funded by it hereunder within
one (1) Business Day of the date required to be funded by it hereunder and
has not cured such failure prior to the date of determination, (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 (1) Business
Day of the date when due, unless the subject of a good faith dispute, and has
not cured such failure prior to the date of determination, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.


 


“Designated Revolving Obligations”
means all obligations of the Borrower with respect to (a) principal and
interest under the Revolving Loans and Swingline Loans, (b) L/C Borrowings
and interest thereon and (c) accrued and unpaid fees thereon.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition
(including any Sale and Leaseback Transaction) of any Property by any Person,
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith (but excluding the making of any Investment pursuant to Section 8.02).


 


“Disqualified
Capital Stock” means Capital Stock that (a) requires the payment of
any dividends or distributions (other than dividends or distributions payable
solely in shares of Capital Stock other than Disqualified Capital Stock) prior
to the date that is the first anniversary of the Final Maturity Date or (b) matures
or is mandatorily redeemable or subject to mandatory repurchase or redemption
or repurchase at the option of the holders thereof, in whole or in part and
whether upon the occurrence of any event, pursuant to a sinking fund
obligation, on a fixed date or otherwise, in each case prior to the date that
is the first anniversary of the Final Maturity Date (other than upon payment in
full of the Obligations (other than contingent indemnification obligations for
which no claim has been made) and termination of the Commitments).


 


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


 


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


 


13

















 


“Dollar
Revolving Commitment” means, for each Dollar Revolving Lender, the commitment
of such Lender to make Dollar Revolving Loans (and to share in Dollar Revolving
Obligations) hereunder.


 


“Dollar
Revolving Commitment Percentage” means, for each Dollar Revolving Lender, a
fraction (expressed as a percentage carried to the ninth decimal place), the
numerator of which is such Dollar Revolving Lender’s Dollar Revolving Committed
Amount and the denominator of which is the Aggregate Dollar Revolving Committed
Amount.  The initial Dollar Revolving
Commitment Percentages are set forth in Schedule 2.01.


 


“Dollar
Revolving Committed Amount” means, for each Dollar Revolving Lender, the
amount of such Lender’s Dollar Revolving Commitment.  The initial Dollar Revolving Committed
Amounts are set forth in Schedule 2.01.


 


“Dollar Revolving Facility” means the
Aggregate Dollar Revolving Commitments and the provisions herein related to the
Dollar Revolving Loans, the Swingline Loans and the Letters of Credit.


 


“Dollar
Revolving Facility Fee” has the meaning provided in Section 2.09(a).


 


“Dollar
Revolving Lenders” means those Lenders with Dollar Revolving Commitments,
together with their successors and permitted assigns.  The initial Dollar Revolving Lenders are
identified on the signature pages hereto and are set forth in Schedule
2.01.


 


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


 


“Dollar
Revolving Notes” means the promissory notes, if any, given to evidence the
Dollar Revolving Loans, as amended, restated, modified, supplemented, extended,
renewed or replaced.  A form of Dollar
Revolving Note is attached as Exhibit 2.13-1.


 


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


 


“Domestic
Cash” means the amount of cash and Cash Equivalents (other than any proceeds
of any Revolving Loans or Swingline Loans) reflected in the bank statements of
the Borrower and the Borrower’s Domestic Subsidiaries immediately after giving
effect to the Transactions, to the extent such amount is unrestricted as of the
Spin-Off Date after giving effect to the Transactions, it being understood that
cash required to be remitted to customers representing the face amount of
tickets sold shall be deemed to be restricted (including without limitation all
payments pursuant to Section 4.04 of the Separation Agreement).


 


“Domestic
Credit Party” means any Credit Party that is organized under the laws of
any State of the United States or the District of Columbia.


 


“Domestic
Subsidiary” means any Subsidiary that is not a Foreign Subsidiary, other
than any Subsidiary the Capital Stock of which is to be transferred to IAC or
one or more of IAC’s Subsidiaries (other than the Borrower and its Subsidiaries)
in connection with the Spin Off.


 


14

















 


“ECF
Application Amount” means, with respect to any fiscal year of the Borrower,
the product of the ECF Percentage applicable to such fiscal year times the
Consolidated Excess Cash Flow for such fiscal year.


 


“ECF
Percentage” means, with respect to any fiscal year of the Borrower (x) ending
on December 31, 2008, zero percent (0%) and (y) ending after December 31,
2008, if the Consolidated Total Leverage Ratio as of the last day of such
fiscal year is (i) greater than or equal to 2.50:1.00, fifty percent (50%)
and (ii) less than 2.50:1.00, zero percent (0%).


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person)
approved by the party or parties whose approval is required under Section 11.06(b);
provided that notwithstanding the foregoing, “Eligible Assignee” shall
not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


 


“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, or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any liability
for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower, any other Credit Party or any of their respective
Subsidiaries 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.


 


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


 


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


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) 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 


 


15

















 


PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition that would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.


 


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


 


“Eurodollar Rate” means, with
respect to any Borrowing of Eurodollar Rate Loans for any Interest Period, the
rate per annum determined by the Administrative Agent to be the arithmetic mean
of the offered rates for deposits in the relevant Approved Currency with a term
comparable to such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at approximately
11:00 a.m. (London time) on the second full Business Day preceding the
first day of such Interest Period; provided,  however,
that (i) if no comparable term for an Interest Period is available, the
Eurodollar Rate shall be determined using the weighted average of the offered
rates for the two terms most nearly corresponding to such Interest Period and (ii) if
there shall at any time no longer exist a Telerate British Bankers Assoc. Interest
Settlement Rates Page, “Eurodollar Rate” shall mean, with respect to each day
during each Interest Period pertaining to a Borrowing of Eurodollar Rate Loans
comprising part of the same Borrowing, the rate per annum equal to the rate at
which the Administrative Agent is offered deposits in the relevant Approved
Currency at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period in the London interbank market for
delivery on the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to its portion of the amount of such
Borrowing to be outstanding during such Interest Period.  “Telerate
British Bankers Assoc. Interest Settlement Rates Page” shall mean
the display designated as Reuters Screen LIBOR01 Page (or such other page as
may replace such page on such service for the purpose of displaying the
rates at which the relevant Approved Currency deposits are offered by leading
banks in the London interbank deposit market).


 


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


 


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


 


“Excluded
Sale and Leaseback Transaction” means any Sale and Leaseback Transaction
with respect to Property owned by the Borrower or any Subsidiary to the extent
such Property is acquired after the Funding Date, so long as such Sale and
Leaseback Transaction is consummated within 180 days of the acquisition of such
Property.


 


“Excluded
Property” means (a) vehicles, (b) fee interests in real property
with a fair market value of less than $2.5 million, (c) leasehold real
property, (d) those assets as to which the Administrative Agent shall
reasonably determine in writing that the costs of obtaining such security
interest are excessive in relation to the value of the security to be afforded
thereby, (e) assets if the granting or perfecting of a security interest
in such assets in favor of the Collateral Agent would violate any applicable
Law, (f) any right, title or interest in any license, contract or agreement
to the extent, but only to the extent that a grant of a security interest
therein to secure the 


 


16

















 


Obligations would, under the terms of such license,
contract or agreement, result in a breach of the terms of, or constitute a
default under, or result in the abandonment, invalidation or unenforceability
of, such license, contract or agreement (other than to the extent that any such
term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408
or 9-409 of the New York UCC or any other applicable law (including, without
limitation, Title 11 of the United States Code) or principles of equity), (g) any
Capital Stock acquired after the Closing Date (other than Capital Stock in a
Subsidiary issued or acquired after such Person became a Subsidiary) in accordance
with this Credit Agreement if, and to the extent that, and for so long as (i) such
Capital Stock constitutes less than 100% of all applicable Capital Stock of
such person, and the Person or Persons holding the remainder of such Capital
Stock are not Affiliates of the Borrower, (ii) doing so would violate
applicable law or a contractual obligation binding on such Capital Stock and (iii) with
respect to such contractual obligations (other than contractual obligations in
connection with a joint venture agreement), such obligation existed at the time
of the acquisition of such Capital Stock and was not created or made binding on
such Capital Stock in contemplation of or in connection with the acquisition of
such Subsidiary, (h) any Property purchased with the proceeds of purchase
money Indebtedness or that is subject to a capital lease, in each case, existing
or incurred pursuant to Sections 8.03(b) or (c) if the
contract or other agreement in which the Indebtedness and/or Liens related
thereto is granted (or the documentation providing for such capital lease
obligation) prohibits or requires the consent of any Person other than a member
of the Consolidated Group as a condition to the creation of any other security
interest on such Property and (i) any Property that is to be transferred
to IAC or one or more of its Subsidiaries (other than the Borrower or any of
its Subsidiaries) pursuant to the Separation Agreement in connection with the
Spin-Off.


 


“Excluded
Taxes” means, with
respect to the Administrative Agent, any Lender, any L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of any
Credit Party hereunder or under any other Credit Document, (a) Taxes
imposed on or measured by its overall net income (however denominated) and
franchise Taxes imposed on it (in lieu of net income Taxes) by any jurisdiction
(or any political subdivision thereof) as a result of such recipient being
organized in or having its principal office or applicable Lending Office in
such jurisdiction or as a result of any other present or former connection with
such jurisdiction (other than any such connections arising solely from such
recipient having executed, delivered, or become a party to, performed its
obligations or received payments under, received or perfected a security
interest under, engaged in any other transaction specifically contemplated by,
or enforced, any Credit Documents), (b) any branch profits taxes imposed
under Section 884(a) of the Internal Revenue Code or any similar tax
imposed by any other jurisdiction described in clause (a) and (c) in
the case of a recipient (other than an assignee pursuant to a request by the
Borrower under Section 11.13), any U.S. federal withholding Tax
that (i) is imposed on amounts payable to such recipient pursuant to Laws
in effect at the time such recipient becomes a party hereto (or designates a
new Lending Office), except to the extent that such recipient (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding Tax pursuant to Section 3.01(a), or (ii) is
attributable to a recipient’s failure to comply with Section 3.01(e).


 


“Existing
Letters of Credit” means the letters of credit listed on Schedule 1.01A
and any other letter of credit issued for the benefit of any Credit Party by either
L/C Issuer from and after the date hereof until the Funding Date.


 


17

















 


“Facility
Fee” has the meaning provided in Section 2.09(a).


 


“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 immediately
succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100th of
1%) charged to JPMCB on such day on such transactions as determined by the
Administrative Agent.


 


“Fee
Letter” means the letter agreement, dated June 19, 2008, among the Borrower,
JPMCB, the Lead Arrangers and the other parties thereto, as amended to the date
hereof.


 


“Final Maturity Date” means, at any
time, the latest of the Revolving Termination Date, the Term A Loan Termination
Date, the Term B Loan Termination Date and any final maturity date applicable
to any outstanding Incremental Term Loans at such time.


 


“First-Tier
Foreign Subsidiary” means any Foreign Subsidiary that is owned directly by
a Domestic Credit Party.


 


“Foreign
Cash” means, at any time, any portion of the amount of the cash and Cash
Equivalents (other than any proceeds of any Revolving Loans or Swingline
Loans), after giving effect to any payments required to be made pursuant to Section 4.04
of the Separation Agreement, reflected in the bank statements of the Borrower’s
Foreign Subsidiaries immediately after giving effect to the Transactions that
is unrestricted on the Spin-Off Date and after giving effect to the
Transactions and, to the extent such cash is repatriated to the Borrower or a
Domestic Subsidiary, net of applicable taxes in connection with such
repatriation, it being understood that cash required to be remitted to
customers representing the face amount of tickets sold shall be deemed to be restricted.


 


“Foreign
Lender” means any Lender or L/C Issuer that is not a United States person under
Section 7701(a)(30) of the Internal Revenue Code.


 


“Foreign
Subsidiary” means (i) any Subsidiary that is not incorporated, formed
or organized under the laws of the United States of America, any State thereof,
or the District of Columbia and (ii) any Subsidiary of a Subsidiary described
in the foregoing clause (i).


 


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


 


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


 


18

















 


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


 


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


 


(b)           all purchase money
indebtedness (including indebtedness and obligations in respect of conditional
sales and title retention arrangements, except for customary conditional sales
and title retention arrangements with suppliers that are entered into in the
ordinary course of business) and all indebtedness and obligations in respect of
the deferred purchase price of property or services (other than trade accounts
payable incurred in the ordinary course of business);


 


(c)           all direct
obligations under letters of credit (including standby and commercial), bankers’
acceptances and similar instruments;


 


(d)           the Attributable
Principal Amount of capital leases;


 


(e)           the amount of all
obligations of such person with respect to the redemption, repayment or other
repurchase of any Disqualified Capital Stock (excluding accrued dividends that
have not increased the liquidation preference of such Disqualified Capital
Stock);


 


(f)            Support Obligations
in respect of Funded Debt of another Person; and


 


(g)           Funded Debt of any
partnership or joint venture or other similar entity in which such Person is a
general partner or joint venturer, and has personal liability for such
obligations, but only to the extent there is recourse to such Person for
payment thereof.


 


For purposes hereof, the amount of Funded Debt shall be determined (i) based
on the outstanding principal amount in the case of borrowed money indebtedness
under clause (a) and purchase money indebtedness and the deferred
purchase obligations under clause (b), (ii) based on the maximum
face amount in the case of letter of credit obligations and the other obligations
under clause (c), and (iii) based on the amount of Funded Debt that
is the subject of the Support Obligations in the case of Support Obligations
under clause (f).  Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving effect to all increases thereof contemplated by such Letter
of Credit or the L/C Application therefor, whether or not such maximum face
amount is in effect at such time.


 


“Funding
Date” means the date when the conditions specified under Section 5.02
and 5.03 hereof are satisfied or waived and the initial Credit Extension
hereunder is made.


 


“GAAP”
has the meaning provided in Section 1.03(a).


 


19

















 


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


 


“Granting
Lender” has the meaning provided in Section 11.06(h).


 


“Guaranteed
Obligations” has the meaning provided in Section 4.01(a).


 


“Guarantors”
means (a) as of the Funding Date, each Subsidiary of the Borrower listed
on Schedule 1.01B and (b) each other Person that becomes a
Guarantor pursuant to the terms hereof, in each case together with its
successors; provided, that, for the avoidance of doubt, no Foreign
Subsidiary shall be a Guarantor.


 


“Hazardous
Materials” means all materials, substances or wastes characterized,
classified or regulated as hazardous, toxic, pollutant, contaminant or
radioactive under Environmental Laws, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes.


 


“Hedge
Bank” has the meaning provided in the definition of Obligations.


 


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


 


“IAC”
means IAC/InterActiveCorp, a Delaware corporation.


 


“IAC
Dividend” means one or more cash dividends to be paid by the Borrower,
directly or indirectly, to IAC in an approximate aggregate amount of $750.0
million.


 


“Immaterial
Subsidiary” means, at any date of determination, any Subsidiary of the Borrower
designated as such in writing by the Borrower that had assets representing 1.0%
or less of the Borrower’s Consolidated Total Assets on, and generated less than
1.0% of the Borrower’s and its Subsidiaries’ total revenues for the four
quarters ending on, the last day of the most recent period at the end of which
financial statements were required to be delivered pursuant to Section 7.01(a) or
(b) or, if such date of determination is prior to the first
delivery date under such Sections, on (or, in the case of revenues, for the
four quarters ending on) the last day of the period of the most recent
financial statements referred to in the first sentence of Section 6.05;
provided that if all Subsidiaries that are individually “Immaterial
Subsidiaries” have aggregate Consolidated Total Assets that would represent
2.5% or more of the Borrower’s Consolidated Total Assets on such last day or
generated 2.5% or more of the Borrower’s and its Subsidiaries’ total revenues
for such four fiscal quarters, then such number of Subsidiaries of the Borrower
as are necessary shall become Material Subsidiaries so that less than 2.5% of
the Borrower’s Consolidated Total Assets and less than 2.5% of the Borrower’s
and its Subsidiaries’ total revenues are represented by Immaterial Subsidiaries
as of such last day or for such four quarters, as the case may be (it being
understood that any such determination with respect to revenues and assets
shall be made on a Pro Forma Basis).


 


20

















 


“Incremental
Loan Facilities” has the meaning provided in Section 2.01(f).


 


“Incremental
Revolving Commitments” has the meaning provided in Section 2.01(f).


 


“Incremental
Term Loan” has the meaning provided in Section 2.01(f).


 


“Incremental
Term Loan Joinder Agreement” means a lender joinder agreement, in a form
reasonably satisfactory to the Administrative Agent, the Borrower and each
Lender extending Incremental Term Loans, executed and delivered in accordance
with the provisions of Section 2.01(h).


 


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


 


(a)           all Funded Debt;


 


(b)           net obligations
under Swap Contracts;


 


(c)           Support Obligations
in respect of Indebtedness of another Person; and


 


(d)           Indebtedness of any
partnership or joint venture or other similar entity in which such Person is a
general partner or joint venturer, and has personal liability for such
obligations, but only to the extent there is recourse to such Person for payment
thereof.


 


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


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitee”
has the meaning provided in Section 11.04(b).


 


“Information”
has the meaning provided in Section 11.07.


 


“Interest
Payment Date” means, (a) as to any Base Rate Loan (including Swingline
Loans), the last Business Day of each March, June, September and December,
the Revolving Termination Date and the date of the final principal amortization
payment on the Term A Loans or Term B Loans, as applicable, and, in the case of
any Swingline Loan, any other dates as may be mutually agreed upon by the
Borrower and the Swingline Lender, and (b) as to any Eurodollar Rate Loan,
the last Business Day of each Interest Period for such Loan, the date of
repayment of principal of such Loan, the Revolving Termination Date and the
date of the final principal amortization payment on the Term A Loans or Term B
Loans, as applicable, and in addition, where the applicable Interest Period exceeds
three (3) months, the date every three (3) months after the beginning
of such Interest Period.  If an Interest
Payment Date falls on a date that is not a Business Day, such Interest Payment
Date shall be deemed to be the immediately succeeding Business Day.


 


21

















 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one (1), two (2), three (3) or
six (6) and, with prior written consent of all applicable Lenders, nine (9) or
twelve (12) months thereafter, as selected by the Borrower in its Loan Notice
or such other period that is twelve months or less requested by the Borrower
and consented to by all the directly affected Lenders; provided that:


 


(a)           any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the immediately 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;


 


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


 


(c)           no Interest Period
with respect to any Revolving Loan shall extend beyond the Revolving Termination
Date; and


 


(d)           no Interest Period
with respect to the Term A Loans or Term B Loans shall extend beyond any
principal amortization payment date for such Loans, except to the extent that
the portion of such Loan comprised of Eurodollar Rate Loans that is expiring
prior to the applicable principal amortization payment date plus the
portion comprised of Base Rate Loans equals or exceeds the principal amortization
payment then due.


 


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


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person of or in the Capital Stock, Indebtedness or other equity or debt
interest of another Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or
capital contribution to, guaranty or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor undertakes any
Support Obligation with respect to Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such Investment.


 


“Involuntary
Disposition” means the receipt by any member of the Consolidated Group of
any cash insurance proceeds or condemnation awards payable by reason of theft, loss,
physical destruction or damage, loss of use, taking or similar event with respect
to any of its Property.


 


“IP
Rights” has the meaning provided in Section 6.17.


 


“IRS”
means the United States Internal Revenue Service.


 


22














 


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


 


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


 


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


 


“JPMCB”
means JPMorgan Chase Bank, N.A.


 


“JPMorgan”
means J.P. Morgan Securities Inc.


 


“Laws”
means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes, executive orders
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, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, including, without
limitation, Environmental Laws.


 


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


 


“L/C
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.


 


“L/C
Borrowing” means any extension of credit resulting from a drawing under any
Letter of Credit that has not been reimbursed.


 


“L/C
Commitment” means, with respect to the L/C Issuer, the commitment of the
L/C Issuer to issue and to honor payment obligations under Letters of Credit,
and, with respect to each Lender, the commitment of such Lender to purchase
participation interests in L/C Obligations up to such Lender’s Dollar Revolving
Commitment Percentage thereof.


 


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


 


“L/C
Expiration Date” means the day that is seven (7) days prior to the
Revolving Termination Date then in effect (or, if such day is not a Business
Day, the immediately preceding Business Day).


 


“L/C
Issuer” means each of JPMCB and Wachovia Bank, National Association, in
each case in its capacity as issuer of Letters of Credit hereunder, together
with its successors in such capacity and any other Dollar Revolving Lender approved
by the Administrative Agent and the 


 


23

















 


Borrower; provided that no other Lender shall
be obligated to become an L/C Issuer hereunder. 
References herein and in the other Credit Documents to the L/C Issuer
shall be deemed to refer to the L/C Issuer in respect of the applicable Letter
of Credit or to all L/C Issuers, as the context requires.


 


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


 


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


 


“Lead
Arrangers” means JPMorgan and MLPF&S.


 


“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto
(and, as appropriate, includes the Swingline Lender) and each Person who joins
as a Lender pursuant to the terms hereof, together with its successors and
permitted assigns.


 


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


 


“Letter
of Credit” means each standby letter of credit issued under the Dollar Revolving
Facility and shall include the Existing Letters of Credit.


 


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


 


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


 


“Loan”
means any Revolving Loan, Swingline Loan, Term A Loan, Term B Loan or Incremental
Term Loan, and the Base Rate Loans and Eurodollar Rate Loans comprising such
Loans.


 


“Loan
Notice” means a notice of (a) a Borrowing of Loans (including
Swingline Loans), (b) a conversion of Loans from one (1) Type to the
other, or (c) a continuation of Eurodollar Rate Loans, which shall be
substantially in the form of Exhibit 2.02.


 


“Loan
Obligations” means the Revolving Obligations, Term A Loans, Term B Loans
and Incremental Term Loans.


 


24

















 


“Major
Disposition” means any Subject Disposition (or any series of related
Subject Dispositions) or any Involuntary Disposition (or any series of related
Involuntary Dispositions), in each case resulting in the receipt by a member of
the Consolidated Group of Net Cash Proceeds in excess of $25.0 million.


 


“Mandatory
Cost Rate” has the meaning provided in Schedule 3.08.


 


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


 


“Material
Subsidiary” means each Subsidiary of the Borrower other than an Immaterial
Subsidiary.


 


“MLPF&S”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated.


 


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


 


“Mortgages”
means those mortgages, deeds of trust, security deeds or like instruments given
by the Credit Parties, as grantors, to the Collateral Agent to secure the
Obligations, and any other such instruments that may be given by any Person
pursuant to the terms hereof, as such instruments may be amended and modified
from time to time.


 


“Multiemployer
Plan” means any employee pension benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five (5) plan years, has made
or been obligated to make contributions.


 


“Net
Cash Proceeds” means the aggregate proceeds paid in cash or Cash
Equivalents received by any member of the Consolidated Group in connection with
any Subject Disposition, Involuntary Disposition or incurrence of Indebtedness
or issuance of Capital Stock, net of (a) attorneys’ fees, accountants’
fees, investment banking fees, sales commissions, underwriting discounts,
survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, required debt
payments and required payments of other obligations relating to the applicable
asset to the extent such debt or obligations are secured by a Lien permitted
hereunder (other than a Lien granted pursuant to a Credit Document) on such asset,
other customary expenses and brokerage, consultant and other customary fees, in
each case, actually incurred in connection therewith and directly attributable
thereto, (b) Taxes paid or payable as a result thereof (estimated
reasonably and in good faith by the Borrower and after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (c) solely
with respect to a Subject Disposition, the amount of any reasonable reserve
established in accordance with GAAP against any adjustment to the sale price or
any liabilities (other than any taxes deducted pursuant to clause (b) above)
(i) related to any of the Property Disposed of in such Subject Disposition
and (ii) retained by the Borrower or any of the Subsidiaries including 


 


25

















 


pension and other post-employment benefit liabilities
and liabilities related to environmental matters or against any indemnification
obligations (provided, however, the amount of any subsequent
reduction of such reserve (other than in connection with a payment in respect
of any such liability) shall be deemed to be Net Cash Proceeds from and after
the date of such reduction).  For purposes
hereof, “Net Cash Proceeds” includes any cash or Cash Equivalents received upon
the Disposition of any non-cash consideration received by any member of the
Consolidated Group in any Subject Disposition or Involuntary Disposition.


 


“New
York UCC” means the Uniform Commercial Code as from time to time in effect
in the State of New York.


 


“Non-Bank
Certificate”  has the meaning
provided in Section 3.01(e).


 


“Non-Extension
Notice Date” has the meaning provided in Section 2.03(b)(iii).


 


“Notes”
means the Revolving Notes, the Swingline Note, the Term A Notes and the
Term B Notes.


 


“Obligations”
means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party (including any Foreign
Subsidiary which becomes a borrower hereunder pursuant to Section 1.08)
arising under any Credit 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 Credit 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, (b) all
obligations under any Swap Contract between any Credit Party and any Lender or
Affiliate of a Lender or any Person that was a Lender or Affiliate of a Lender
at the time it entered into such Swap Contract, to the extent such Swap
Contract is otherwise permitted hereunder (each, in such capacity, a “Hedge
Bank”) and (c) all obligations under any Treasury Management Agreement
between any Credit Party and any Lender or Affiliate of a Lender or any Person
that was a Lender or Affiliate of a Lender at the time it entered into such
Treasury Management Agreement (each, in such capacity, a “Treasury Management
Bank”).


 


“OID”
has the meaning provided in Section 2.01(h).


 


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


 


“Other
Taxes” means all present or future stamp or documentary Taxes or any other
excise or property Taxes arising from any payment made hereunder or under any
other Credit 


 


26

















 


Document or from the execution, delivery, registration
or enforcement of, or otherwise with respect to, this Credit Agreement or any
other Credit Document.


 


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


 


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


 


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


 


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


 


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


 


“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 (5) plan years.


 


“Permitted
Acquisition” means any Acquisition; provided that (i) no
Default or Event of Default shall have occurred and be continuing or exist
immediately after giving effect to such Acquisition, (ii) after giving
effect on a Pro Forma Basis to the Investment to be made, as of the last day of
the most recently ended fiscal quarter at the end of which financial statements
were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10 (and if such Acquisition involves
consideration greater than $15.0 million, then the Borrower shall deliver a
certificate of a Responsible Officer as to the satisfaction of the requirements
in 


 


27

















 


this clause (ii)) and (iii) if such Acquisition
involves consideration in excess of $10.0 million (or if the total of all
consideration for all Acquisitions since the Closing Date exceeds $30.0
million), all assets acquired in such Acquisition shall be held by the Borrower
or a Guarantor and all Persons acquired in such Acquisition shall become
Guarantors; provided  further that the Borrower may elect to
allocate consideration expended in such Acquisition for Property to be held by
members of the Consolidated Group that are not the Borrower or Guarantors or
Acquisitions of Subsidiaries that are not Guarantors to Investments made
pursuant to Sections 8.02(f), (k) or, to the extent the
consideration comes from a Foreign Subsidiary, Section 8.02(g), so
long as capacity to make such Investments pursuant to the applicable Section is
available at the time of such allocation (and any consideration so allocated
shall reduce capacity for Investments pursuant to such Sections to the extent
that capacity for such Investments are limited by such Sections), and to the
extent such consideration is in fact so allocated to one of such Sections in
accordance with the foregoing requirements, such consideration shall not count
toward the $10.0 million and $30.0 million limitations set forth in this clause
(iii).


 


“Permitted
Business” means the businesses of the Borrower and its Subsidiaries conducted
on the Closing Date and any business reasonably related, ancillary or
complementary thereto and any reasonable extension thereof.


 


“Permitted
Holders” means each of (a) Barry Diller and (b) Liberty Media
Corporation, and, in each case, such Person’s Affiliates and any group with
respect to which any such Persons (including Affiliates) collectively exercise
a majority of the voting power.  Prior to
the Spin-Off, IAC and its Subsidiaries will also be deemed to be Permitted
Holders.


 


“Permitted
Liens” means Liens permitted pursuant to Section 8.01.


 


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


 


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


 


“Platform”
has the meaning provided in Section 7.02.


 


“Pledge
Agreement” means the pledge agreement substantially in the form of Exhibit 1.01A
(it being understood that the pledgors party thereto and schedules thereto
shall be reasonably satisfactory to the Administrative Agent), given by the
Credit Parties, as pledgors, to the Collateral Agent to secure the Obligations,
and any other pledge agreements that may be given by any Person pursuant to the
terms hereof, in each case as the same may be amended and modified from time to
time.


 


“Pro
Forma Basis” means, with respect to any Subject Disposition, Specified
Disposition, Acquisition, Incremental Loan Facilities or the Transactions, for
purposes of determining the applicable pricing level under the definition of “Applicable
Percentage” and determining compliance with the financial covenants and
conditions and the requirements of the definition of “Immaterial Subsidiary”
hereunder, that such Subject Disposition, Specified Disposition, Acquisition,
Incremental Loan Facilities or the Transactions shall be deemed to have
occurred as of the 


 


28

















 


first day of the period of four (4) consecutive
fiscal quarters ending as of the end of the most recent fiscal quarter for
which annual or quarterly financial statements shall have been delivered in
accordance with the provisions hereof, after giving effect to any Pro Forma
Cost Savings.  Further, for purposes of
making calculations on a “Pro Forma Basis” hereunder, (a) in the case of
any Subject Disposition or Specified Disposition, (i) income statement
items (whether positive or negative) attributable to the property, entities or
business units that are the subject of such Subject Disposition or Specified
Disposition shall be excluded to the extent relating to any period prior to the
date thereof and (ii) Indebtedness paid or retired in connection with such
Subject Disposition or Specified Disposition shall be deemed to have been paid
and retired as of the first day of the applicable period; and (b) in the
case of any Acquisition, (i) income statement items (whether positive or
negative) attributable to the property, entities or business units that are the
subject thereof shall be included to the extent relating to any period prior to
the date thereof and (ii) Indebtedness incurred in connection with such
Acquisition shall be deemed to have been incurred as of the first day of the
applicable period (and interest expense shall be imputed for the applicable
period assuming prevailing interest rates hereunder).


 


“Pro
Forma Cost Savings” means, with respect to any period, the reduction in net
costs and related adjustments that (i) were directly attributable to an
Acquisition, Subject Disposition or Specified Disposition that occurred during
the four-quarter reference period or subsequent to the four-quarter reference
period and on or prior to the date of determination and calculated on a basis
that is consistent with Regulation S-X under the Securities Laws, as amended
and in effect and applied as of the date hereof, (ii) were actually
implemented by the business that was the subject of any such Acquisition,
Subject Disposition or Specified Disposition or actually implemented by the
Borrower and its Subsidiaries in connection with such Acquisition, Subject Disposition
or Specified Disposition, in each case, within 12 months after the date of the
Acquisition, Subject Disposition or Specified Disposition and prior to the date
of determination that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to (A) the
business that is the subject of or (B) the business of the Borrower and
its Subsidiaries arising from any such Acquisition, Subject Disposition or
Specified Disposition and that the Borrower reasonably determines are probable
based upon specifically identifiable actions to be taken within 12 months of
the date of the Acquisition, Subject Disposition or Specified Disposition and,
in each case, are described, as provided below, in a certificate from a
Responsible Officer of the Borrower, as if all such reductions in costs had
been effected as of the beginning of such period.  Pro Forma Cost Savings described above shall
be accompanied by a certificate from a Responsible Officer of the Borrower
delivered to the Administrative Agent that outlines the specific actions taken
or to be taken, the net cost savings achieved or to be achieved from each such
action and that, in the case of clause (iii) above, such savings
have been determined to be probable; provided that such net costs and related
adjustments referred to in clauses (ii) and (iii) shall not
exceed $15.0 million in any period for which Consolidated EBITDA is calculated.


 


“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 outstanding Term A Loans or Term B Loans
(or, prior to the Funding Date, Term A Loan Commitments or Term B Loan
Commitments) or Revolving Commitments, as applicable, of such Lender at such
time and the denominator of which is the aggregate amount of Term A Loans,
Term B Loans (or, prior to the Funding Date, Term A Loan Commitments or Term B
Loan Commitments) or Revolving Commitments, as applicable, at such time; provided
that if such 


 


29

















 


Revolving Commitments have been terminated, then the
Pro Rata Share of each applicable Lender shall be determined based on the Pro
Rata Share of such Lender immediately prior to such termination and after
giving effect to any subsequent assignments made pursuant to the terms hereof.


 


“Property”
means an interest of any kind in any property or asset, whether real, personal
or mixed, and whether tangible or intangible.


 


“Qualified
Capital Stock” means any Capital Stock of the Borrower other than Disqualified
Capital Stock.


 


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


 


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


 


“Regulation D” means Regulation D
of the Board of Governors of the Federal Reserve System of the United States as
from time to time in effect and all official rulings and interpretations
thereunder or thereof.


 


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


 


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


 


“Request
for Credit Extension” means (a) with respect to a Borrowing of Loans
(including Swingline Loans) a Loan Notice and (b) with respect to an L/C
Credit Extension, a L/C Application.


 


“Required
Approved Currency Revolving Lenders” means, as of any date of determination,
Lenders having more than fifty percent (50%) of the Aggregate Approved Currency
Revolving Commitments or, if the Approved Currency Revolving Commitments shall
have expired or been terminated, Lenders holding more than fifty percent (50%)
of the aggregate principal amount of Approved Currency Revolving Loans; provided
that the Approved Currency Revolving Commitment of, and the portion of Approved
Currency Revolving Loans held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Approved Currency Revolving Lenders


 


“Required
Dollar Revolving Lenders” means, as of any date of determination, Lenders
having more than fifty percent (50%) of the Aggregate Dollar Revolving
Commitments or, if the Dollar Revolving Commitments shall have expired or been
terminated, Lenders holding more than fifty percent (50%) of the aggregate
principal amount of Dollar Revolving Obligations (including, in each case, the
aggregate principal amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swingline Loans); provided that the
Dollar Revolving Commitment of, and the portion of Dollar Revolving Obligations
held by, any Defaulting 


 


30

















 


Lender shall be excluded for purposes of making a
determination of Required Dollar Revolving Lenders.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
fifty percent (50%) of the sum of (i) the Term Loan Commitments (or, from
and after the initial borrowings hereunder, the Term Loans) and (ii) the
Aggregate Revolving Commitments (or, if the Revolving Commitments shall have
expired or been terminated, the Revolving Obligations (including, in each case,
the aggregate amount of each Lender’s risk participation and funded participation
in L/C Obligations and Swingline Loans)); provided that the Commitments
of, and the portion of the Loan Obligations held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


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


 


“Required
Term A Lenders” means, as of any date of determination, Lenders holding
more than fifty percent (50%) of the aggregate principal amount of Term A Loan
Commitments (or, from and after the initial borrowings hereunder, the Term A
Loans); provided that the Term A Loan Commitments held or deemed held by
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Term Lenders.


 


“Required
Term B Lenders” means, as of any date of determination, Lenders holding
more than fifty percent (50%) of the aggregate principal amount of Term B Loan
Commitments (or, from and after the initial borrowings hereunder, the Term B
Loans); provided that the Term B Loan Commitments held or deemed held by
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Term Lenders.


 


“Responsible
Officer” means the chief executive officer, chief operating officer, the
president, any executive vice president, the chief financial officer, the chief
accounting officer, the treasurer, any assistant treasurer, any vice president,
any senior vice president, the secretary or the general counsel of a Credit
Party, any manager of a Credit Party that is a limited liability company or the
general partner of a Credit Party that is a limited partnership.  Any document delivered hereunder that is
signed by a Responsible Officer of a Credit Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Credit Party, and such Responsible Officer
shall be conclusively presumed to have acted on behalf of such Credit Party.


 


“Restricted
Payment” means (i) any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock of any
member of the Consolidated Group, (ii) any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation 


 


31

















 


or termination of any such Capital Stock or of any
option, warrant or other right to acquire any such Capital Stock or (iii) any
payment or prepayment of principal on or redemption, repurchase or acquisition
for value of, any (x) Indebtedness of any member of the Consolidated Group
that is not secured by a Lien or (y) Subordinated Debt of any member of
the Consolidated Group, except in each case, any scheduled payment of
principal.


 


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


 


“Revolving
CAM Exchange” means the exchange of the Revolving Lenders’ interests in the
Designated Revolving Obligations provided for in Section 2.14.


 


“Revolving
CAM Exchange Date” means the first date after the Closing Date on which
there shall occur (a) any event described in Section 9.01(f) or
(h) with respect to the Borrower or (b) an acceleration of
Revolving Loans or termination of the Revolving Commitments pursuant to Section 9.02.


 


“Revolving
CAM Percentage” means, as to each Revolving Lender, a fraction, expressed
as a decimal, of which (a) the numerator shall be the Revolving
Commitments of such Revolving Lender immediately prior to the Revolving CAM
Exchange Date and any termination of Revolving Commitments and (b) the
denominator shall be the Aggregate Revolving Commitments of all Revolving
Lenders immediately prior to the Revolving CAM Exchange Date and any termination
of Revolving Commitments.


 


“Revolving
Commitment” means a Dollar Revolving Commitment or an Approved Currency
Revolving Commitment and “Revolving Commitments” means, collectively,
the Dollar Revolving Commitments and Approved Currency Revolving Commitments.


 


“Revolving
Commitment Percentage” means the collective reference to the Dollar Revolving
Commitment Percentage and the Approved Currency Revolving Commitment Percentage.


 


“Revolving
Committed Amount” means the collective reference to the Dollar Revolving
Committed Amount and the Approved Currency Revolving Committed Amount.


 


“Revolving Facility” means the Dollar
Revolving Facility or the Approved Currency Revolving Facility and “Revolving
Facilities” means, collectively, the Dollar Revolving Facility and the
Approved Currency Revolving Facility.


 


32














 


“Revolving
Lender” means a Dollar Revolving Lender or an Approved Currency Revolving
Lender and “Revolving Lenders” means the collective reference to Dollar
Revolving Lenders and Approved Currency Revolving Lenders.


 


“Revolving
Lender Joinder Agreement” means a joinder agreement, in a form to be agreed
among the Administrative Agent, the Borrower and each Lender with an
Incremental Revolving Commitment, executed and delivered in accordance with the
provisions of Section 2.01(f).


 


“Revolving
Loan” means a Dollar Revolving Loan or an Approved Currency Revolving Loan
and “Revolving Loans” means, collectively, Dollar Revolving Loans and
Approved Currency Revolving Loans.


 


“Revolving
Notes” means the collective reference to the Dollar Revolving Notes and the
Approved Currency Revolving Notes.


 


“Revolving
Obligations” means the collective reference to the Dollar Revolving Obligations
and the Approved Currency Revolving Loans.


 


“Revolving
Termination Date” means the fifth anniversary of the Closing Date.


 


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


 


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


 


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


 


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


 


“Scheduled
Matter” has the meaning provided in Section 5.01(c)(ii).


 


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


 


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


 


33

















 


Oversight Board, as each of the foregoing may be
amended and in effect on any applicable date hereunder.


 


“Security
Agreement” means the security agreement substantially in the form of Exhibit 1.01B,
(it being understood that the grantors party thereto and schedules thereto
shall be reasonably satisfactory to the Administrative Agent), given by Credit
Parties, as grantors, to the Collateral Agent to secure the Obligations, and
any other security agreements that may be given by any Person pursuant to the
terms hereof, in each case as the same may be amended and modified from time to
time.


 


“Senior
Notes” means the Borrower’s 10.75% Senior Notes due 2016 in an aggregate
principal amount of $300.0 million to be issued on or prior to the Funding Date
and any exchange notes issued in exchange therefor pursuant to the registration
rights agreement executed in connection with the issuance thereof.


 


“Separation
Agreement” means the Separation Agreement to be dated on or prior to the
Spin-Off Date among Interval Leisure Group, Inc., HSN, Inc.,
Tree.com, the Borrower and IAC, together with all schedules, annexes, exhibits
and other attachments thereto.


 


“Significant
Subsidiary” means (1) any Subsidiary that satisfies the criteria for a
“significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X under the Securities Laws, as such Regulation is in effect on
the Closing Date (with the references to 10% in such Rule being deemed to
be 5.0% for the purposes of this definition), and (2) any Subsidiary that,
when aggregated with all other Subsidiaries that are not otherwise Significant
Subsidiaries and as to which any event described in Section 9.01(f)
or (h) has occurred and is continuing, would constitute a Significant
Subsidiary under clause (1) of this definition.


 


“Solvent”
means, with respect to any Person, as of any date of determination, (a) the
Fair Value and Present Fair Saleable Value of the aggregate assets of such
Person exceeds the value of its Liabilities; (b) such Person will not
have, as of such date, an unreasonably small amount of capital with which to
conduct its business; (c) such Person will be able to pay its Liabilities
as they mature or become absolute; and (d) the Fair Value and Present Fair
Saleable Value of the aggregate assets of such Person exceeds the value of its
Liabilities by an amount that is not less than the capital of such Subject
Entity (as determined pursuant to Section 154 of the Delaware General
Corporate Law). The term “Solvency” shall have an equivalent meaning. For the
purposes of this definition, “Fair Value”  means the aggregate amount at which the
assets of the applicable entity (including goodwill) would change hands between
a willing buyer and a willing seller, within a commercially reasonable amount
of time, each having reasonable knowledge of the relevant facts, neither being
under any compulsion to act and with equity to both; “Present Fair Saleable
Value” means the aggregate amount of net consideration (giving effect to
reasonable and customary costs of sale or taxes) that could be expected to be
realized if the aggregate assets of the applicable entity are sold with
reasonable promptness in an arm’s length transaction under present conditions
for the sale of assets of comparable business enterprises; and “Liabilities”  means all debts and other liabilities of the
applicable entity, whether secured, unsecured, fixed, contingent, accrued or not
yet accrued.


 


“SPC”
has the meaning provided in Section 11.06(h).


 


34

















 


“Specified
Disposition” means any Disposition referred to in clause (a) of
the definition of Subject Disposition, to the extent a material amount of
Property is disposed of in such Disposition.


 


“Specified
Intercompany Transfers” means a Disposition of Property by a Credit Party
to a member of the Consolidated Group that is not a Credit Party.


 


“Spin-Off”
means the spin-off of the Borrower from IAC pursuant to the Separation
Agreement, such that from and after such spin-off, the Borrower will exist as a
separate publicly traded entity.


 


“Spin-Off
Date” means the date upon which the Spin-Off is consummated.


 


“Spot
Rate” for a currency means the rate determined by the Administrative Agent
or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in
such capacity as the spot rate for the purchase by such Person of such currency
with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. (x) New York time, in the case of Canadian
Dollars, or (y) London time, in the case of any other currency, in each
case on the date two (2) Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative
Agent or the L/C Issuer may obtain such spot rate from another financial
institution designated by the Administrative Agent or the L/C Issuer if the
Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; and provided  further that
the L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.


 


“Statutory Reserves” means for any
Interest Period for any Borrowing of Eurodollar Rate Loans in Dollars, the
average maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D by member banks of the United States Federal Reserve System
in New York City with deposits exceeding one billion Dollars against “Eurocurrency
liabilities” (as such term is used in Regulation D).  Borrowings of Eurodollar Rate Loans shall be
deemed to constitute Eurodollar liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.


 


“Sterling”
and “£” mean the lawful currency of the United Kingdom.


 


“Subject
Disposition” means any Disposition other than (a) Dispositions of damaged,
worn-out or obsolete Property that, in the Borrower’s reasonable judgment, is
no longer used or useful in the business of the Borrower or its Subsidiaries; (b) Dispositions
of inventory, services or other property 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 reasonably promptly applied to the purchase
price of such replacement equipment or property; (d) licenses, sublicenses,
leases and subleases not interfering in any material respect with the business
of any member of the Consolidated Group; (e) sales or discounts of
accounts receivable in connection with the compromise or collection 


 


35

















 


thereof in the ordinary course of business; (f) any
Disposition at any time by (i) a Credit Party to any other Credit Party, (ii) a
Subsidiary that is not a Credit Party to a Credit Party or (iii) a
Subsidiary that is not a Credit Party to another Subsidiary that is not a
Credit Party; (g) Specified Intercompany Transfers; (h) the sale of
Cash Equivalents; (i) an Excluded Sale and Leaseback Transaction; (j) Dispositions
pursuant to a transaction contemplated by Section 8.12; (k) Restricted
Payments permitted by Section 8.06; (l) mergers and
consolidations permitted by Section 8.04 and (m) the granting
of Liens permitted pursuant to Section 8.01.


 


“Subordinated
Debt” means (x) as to the Borrower, any Funded Debt of the Borrower
that is expressly subordinated in right of payment to the prior payment of any
of the Loan Obligations of the Borrower and (y) as to any Guarantor, any
Funded Debt of such Guarantor that is expressly subordinated in right of
payment to the prior payment of any of the Loan Obligations of such Guarantor.


 


“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 provided, “Subsidiary”
shall refer to a Subsidiary of the Borrower.


 


“Support
Obligations” means, as to any Person, (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness payable 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, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness of the payment or performance of
such Indebtedness, (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 (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien).  The amount of any Support Obligations
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
Support Obligation 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.


 


“Swap
Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, 


 


36

















 


currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.


 


“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 values
determined in accordance therewith, such termination values, and (b) for
any date prior to the date referenced in clause (a), the amounts
determined as the mark-to-market values 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).


 


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


 


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


 


“Swingline
Lender” means JPMCB in its capacity as such, together with any successor in
such capacity.


 


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


 


“Swingline
Note” means the promissory note given to evidence the Swingline Loans, as
amended, restated, modified, supplemented, extended, renewed or replaced.  A form of Swingline Note is attached as Exhibit 2.13-3


 


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


 


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


 


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


 


“Term
A Commitment Fee” has the meaning provided in Section 2.09.


 


“Term
A Lenders” means, prior to the funding of the initial Term A Loans on the
Funding Date, those Lenders with Term A Loan Commitments, and after funding of
the Term A Loans, those Lenders holding a portion of the Term A Loans, together
with their successors and permitted assigns. 
The initial Term A Lenders are set forth on Schedule 2.01.


 


37

















 


“Term
A Loan Commitment” means, for each Term A Lender, the commitment of such
Lender to make a portion of the Term A Loan hereunder; provided that, at
any time after funding of the Term A Loans, determinations of “Required Lenders”
and “Required Term A Lenders” shall be based on the outstanding principal
amount of the Term A Loan.


 


“Term
A Loan Commitment Percentage” means, for each Term A Lender, a fraction (expressed
as a percentage carried to the ninth decimal place), the numerator of which is
the principal amount of such Lender’s Term A Loan, and the denominator of which
is the Outstanding Amount of the Term A Loans. 
The initial Term A Loan Commitment Percentages are set forth on Schedule
2.01.


 


“Term
A Loan Committed Amount” means, for each Term A Lender, the amount of such
Lender’s Term A Loan Commitment.  The
initial Term A Loan Committed Amounts are set forth on Schedule 2.01.


 


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


 


“Term
A Loans” has the meaning provided in Section 2.01(d).


 


“Term
A Note” means the promissory notes substantially in the form of Exhibit 2.13-4,
if any, given to evidence the Term A Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced.


 


“Term
B Commitment Fee” has the meaning provided in Section 2.09.


 


“Term
B Lenders” means, prior to the funding of the initial Term B Loans on the
Funding Date, those Lenders with Term B Loan Commitments, and after funding of
the Term B Loans, those Lenders holding a portion of the Term B Loans
(including any Incremental Term Loans that are Term B Loans), together with
their successors and permitted assigns. 
The initial Term B Lenders are set forth on Schedule 2.01.


 


“Term
B Loan Commitment” means, for each Term B Lender, the commitment of such
Lender to make a portion of the Term B Loan hereunder; provided that, at
any time after funding of the Term B Loans, determinations of “Required Lenders”
and “Required Term B Lenders” shall be based on the outstanding principal
amount of the Term B Loan.


 


“Term
B Loan Commitment Percentage” means, for each Term B Lender, a fraction (expressed
as a percentage carried to the ninth decimal place), the numerator of which is
the principal amount of such Lender’s Term B Loan (including any Incremental
Term Loans that are Term B Loans), and the denominator of which is the
Outstanding Amount of the Term B Loans (including any Incremental Term Loans
that are Term B Loans).  The initial Term
B Loan Commitment Percentages are set forth on Schedule 2.01.


 


“Term
B Loan Committed Amount” means, for each Term B Lender, the amount of such
Lender’s Term B Loan Commitment.  The
initial Term B Loan Committed Amounts are set forth on Schedule 2.01.


 


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


 


38

















 


“Term
B Loans” has the meaning provided in Section 2.01(e).


 


“Term
B Note” means the promissory notes substantially in the form of Exhibit 2.13-5,
if any, given to evidence the Term B Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced.


 


“Term
Loan Commitments” means the Term A Loan Commitment and the Term B Loan Commitment.


 


“Term
Loan Lenders” means the Term A Lenders and the Term B Lenders.


 


“Term
Loans” means the Term A Loans and the Term B Loans.


 


“Transactions”
means the borrowing of the Term A Loans and the Term B Loans on the Funding
Date, the consummation of the Spin-Off, the issuance of the Senior Notes, the
payment of the IAC Dividend, the distribution by the Borrower of intercompany
receivables, directly or indirectly, to IAC or any of its subsidiaries, the
other transactions contemplated by Section 8.12, and the payment of
fees and expenses in connection with the foregoing.


 


“Treasury
Management Bank” has the meaning provided in the definition of Obligations.


 


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


 


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


 


“UCC”
means the Uniform Commercial Code in effect in any applicable jurisdiction from
time to time.


 


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


 


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


 


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


 


“Wholly
Owned Subsidiary” means, with respect to any direct or indirect Subsidiary
of any Person, that one hundred percent (100%) of the Capital Stock with
ordinary voting power issued by such Subsidiary (other than directors’
qualifying shares and investments by foreign nationals mandated by applicable
Law) is beneficially owned, directly or indirectly, by such Person.


 


39

















 


1.02        Interpretative
Provisions.


 


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


 


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


 


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


 


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


 


1.03        Accounting
Terms and Provisions.


 


(a)           As used herein, “GAAP” means
generally accepted accounting principles in effect in the United States as 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 from time to time
applied on a consistent basis, subject to the provisions of this Section 1.03.  For the avoidance of doubt, for any period
prior to the consummation of the Spin-Off, any financial definitions for the
Borrower and its Subsidiaries shall be calculated on a combined basis
consistent with the financial statements set forth in Section 6.05.  All accounting 


 


40

















 


terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required
to be submitted pursuant to this Credit Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis in a manner consistent with
that used in preparing the audited financial statements referenced in Section 6.05,
except as otherwise specifically prescribed herein.


 


(b)           Notwithstanding any provision herein
to the contrary, determinations of (i) the Consolidated Total Leverage
Ratio for purposes of determining the applicable pricing level under the
definition of “Applicable Percentage”, (ii) compliance with covenants and
conditions and (iii) revenues for determining Material Subsidiaries and
Immaterial Subsidiaries shall be made on a Pro Forma Basis.  To the extent compliance with the covenants
in Section 8.10 is being calculated as of a date that is prior to
the first test date under Section 8.10 in order to determine the
permissibility of a transaction, the levels for the covenants as of the first
test date under Section 8.10 shall apply for such purpose.


 


(c)           If at any time any change in GAAP or
in the consistent application thereof would affect the computation of any
financial ratio or requirement set forth in any Credit Document, the Borrower
may, after giving written notice thereof to the Administrative Agent, determine
all such computations on such a basis; provided that if any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Credit Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided further that,
until so amended (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Credit Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.


 


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


 


1.04        Rounding.


 


Any
financial ratios required to be maintained by the Borrower pursuant to this
Credit 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).


 


41














 


1.05        Times
of Day.


 


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


 


1.06        Exchange
Rates; Currency Equivalents.


 


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


 


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


 


1.07        Additional
Alternative Currencies.


 


The Borrower may from time to time request that an
additional currency be added as “Alternative Currency;” provided that such
requested currency is a lawful currency (other than Dollars) that is readily
available and freely transferable and convertible into Dollars.  Such request shall be subject to the approval
of the Administrative Agent and each Approved Currency Revolving Lender; provided
that if such “Alternative Currency” is to be used for Letters of Credit only,
such request shall be subject only to the approval of the Administrative Agent
and the L/C Issuer.


 


1.08        Additional
Borrowers.


 


Notwithstanding
anything in Section 11.01 to the contrary, following the Funding
Date, with the consent of the Borrower, each Approved Currency Revolving Lender
and the Administrative Agent (but without the consent of any other Lender),
this Credit Agreement and the other Credit Documents may be amended to add one
or more Foreign Subsidiaries of the Borrower as additional borrowers under the
Approved Currency Revolving Facility. 
Any obligations in respect of borrowings by any Foreign Subsidiary under
the Credit Agreement will constitute “Obligations” and “Secured Obligations”
for all purposes of the Credit Documents and any such amendment may require
such Foreign Subsidiary to provide additional collateral (but solely for the
obligations of such Foreign Subsidiary hereunder).  Any such amendment may also affect any other
amendments to this Credit Agreement (including, without limitation, amendments
to Section 3.01 of this Credit Agreement and the definition of “Excluded
Taxes”) and the other Credit Documents as are consented to by the
Administrative Agent, the Borrower and each Approved


 


42

















 


Currency Revolving Lender as may be reasonably
necessary or appropriate to appropriately include such Foreign Subsidiary as a
Borrower hereunder (provided that no such amendment shall adversely
affect the rights of any Lender that has not consented to such amendment in any
material respect).


 


1.09        Change
of Currency.


 


(a)           Each obligation of the
Borrower to make a payment denominated in the national currency unit of any
member state of the European Union that adopts the Euro as its lawful currency
after the date hereof shall be redenominated into Euro at the time of such
adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such
member state, the basis of accrual of interest expressed in this Credit
Agreement in respect of that currency shall be inconsistent with any convention
or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention
or practice with effect from the date on which such member state adopts the
Euro as its lawful currency; provided that if any Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Borrowing, at the end
of the then current Interest Period.


 


(b)           Each provision of this
Credit Agreement shall be subject to such reasonable changes of construction as
the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.


 


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


 


1.10        Letter
of Credit Amounts.


 


Unless
otherwise provided, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the Dollar Equivalent of the maximum face
amount available to be drawn of such Letter of Credit after giving effect to
all increases thereof contemplated by such Letter of Credit or the Issuer Documents
related thereto, whether or not such maximum face amount is in effect at such
time.


 


ARTICLE
II


 


COMMITMENTS
AND CREDIT EXTENSIONS


 


2.01        Commitments.


 


Subject
to the terms and conditions set forth herein:


 


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(a)           Revolving Loans.


 


(i)    Dollar Revolving Loans.  Following the Funding Date, each Dollar
Revolving Lender severally agrees to make revolving credit loans (the “Dollar
Revolving Loans”) in Dollars to the Borrower from time to time on any
Business Day prior to the Revolving Termination Date; provided that
after giving effect to any such Dollar Revolving Loan, (x) with respect to
the Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar
Revolving Obligations shall not exceed ONE HUNDRED MILLION DOLLARS
($100,000,000) (as such amount may be increased pursuant to Section 2.01(g) or
decreased pursuant to Sections 2.07 or 9.02(a), the “Aggregate
Dollar Revolving Committed Amount”) and (y) with respect to each
Dollar Revolving Lender individually, such Lender’s Dollar Revolving Commitment
Percentage of Dollar Revolving Obligations shall not exceed its respective
Dollar Revolving Committed Amount. 
Dollar Revolving Loans may consist of Base Rate Loans, Eurodollar Rate
Loans or a combination thereof, as the Borrower may request.  Dollar Revolving Loans may be repaid and
reborrowed in accordance with the provisions hereof.  Notwithstanding anything contained herein, no
Dollar Revolving Loans in excess of $25.0 million in the aggregate may be
borrowed prior to completion of the Spin-Off.


 


(ii)   Approved Currency Revolving
Loans.  Following the Funding Date,
each Approved Currency Revolving Lender severally agrees to make revolving
credit loans (the “Approved Currency Revolving Loans”) in one or more Approved
Currencies to the Borrower from time to time on any Business Day prior to the
Revolving Termination Date; provided that after giving effect to any
such Approved Currency Revolving Loan, (x) with respect to the Approved Currency
Revolving Lenders collectively, the Outstanding Amount of Approved Currency Revolving
Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such
amount may be increased pursuant to Section 2.01(g) or
decreased in accordance with the Sections 2.07 or 9.02(a), the “Aggregate
Approved Currency Revolving Committed Amount”) and (y) with respect to
each Approved Currency Revolving Lender individually, such Lender’s Approved
Currency Revolving Commitment Percentage of Approved Currency Revolving Loans
shall not exceed its respective Approved Currency Revolving Committed
Amount.  Approved Currency Revolving
Loans denominated in Dollars or Canadian Dollars may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereof, as the Borrower may
request.  Approved Currency Revolving
Loans denominated in an Alternative Currency (other than Canadian Dollars) must
consist of Eurodollar Rate Loans. 
Approved Currency Revolving Loans may be repaid and reborrowed in
accordance with the provisions hereof. 
Notwithstanding anything contained herein, no Revolving Loans in excess
of $25.0 million in the aggregate may be borrowed prior to completion of
the Spin-Off.


 


(b)           Letters of Credit.  On and after the Funding Date, (x) each
L/C Issuer, in reliance upon the commitments of the Dollar Revolving Lenders
set forth herein, agrees (A) to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies, for the account


 


44

















 


of the Borrower (or for the account of any
member of the Consolidated Group or BCV, but in such case the Borrower will
remain obligated to reimburse the L/C Issuer for any and all drawings under
such Letter of Credit, and the Borrower acknowledges that the issuance of Letters
of Credit for the account of members of the Consolidated Group or BCV inures to
the benefit of the Borrower, and the Borrower acknowledges that the Borrower’s
business derives substantial benefits from the business of such members of the
Consolidated Group and BCV) on any Business Day, (B) to amend or extend
Letters of Credit previously issued hereunder, and (C) to honor drawings
under Letters of Credit; and (y) the Dollar Revolving Lenders severally
agree to purchase from the L/C Issuer a participation interest in Letters of
Credit issued hereunder in an amount equal to such Dollar Revolving Lender’s
Dollar Revolving Commitment Percentage thereof; provided that (A) the
Outstanding Amount of L/C Obligations shall not exceed TWENTY MILLION DOLLARS
($20,000,000) (as such amount may be decreased in accordance with the
provisions hereof, the “L/C Sublimit”), (B) with regard to the
Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar
Revolving Obligations shall not exceed the Aggregate Dollar Revolving Committed
Amount, (C) with regard to each Dollar Revolving Lender individually, such
Dollar Revolving Lender’s Dollar Revolving Commitment Percentage of Dollar
Revolving Obligations shall not exceed its respective Dollar Revolving
Committed Amount and (D) the Outstanding Amount of L/C Obligations for the
account of BCV shall not exceed $3,500,000. 
Subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. 
Notwithstanding anything contained herein, no Letters of Credit may be
used to support the IAC Dividend, the Spin-Off, any transaction contemplated by
the Spin-Off or contemplated by Section 8.12.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Funding Date
shall be subject to and governed by the terms and conditions hereof.


 


(c)           Swingline Loans.  During the Commitment Period, the Swingline
Lender agrees, in reliance upon the commitments of the other Dollar Revolving
Lenders set forth herein, to make revolving credit loans (the “Swingline
Loans”) to the Borrower in Dollars on any Business Day; provided
that (i) the Outstanding Amount of Swingline Loans shall not exceed
FIFTEEN MILLION DOLLARS ($15,000,000) (as such amount may be decreased in accordance
with the provisions hereof, the “Swingline Sublimit”) and (ii) with
respect to the Dollar Revolving Lenders collectively, the Outstanding Amount of
Dollar Revolving Obligations shall not exceed the Aggregate Dollar Revolving
Committed Amount.  Swingline Loans shall
be comprised solely of Base Rate Loans, and may be repaid and reborrowed in
accordance with the provisions hereof. 
Immediately upon the making of a Swingline Loan, each Dollar Revolving
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swingline Lender a participation interest in such Swingline
Loan in an amount equal to such Lender’s Dollar Revolving Commitment Percentage
thereof.  Notwithstanding anything contained
herein, no Swingline Loans may be used to fund the IAC Dividend, the Spin-Off,
any transaction related to the Spin-Off or contemplated by Section 8.12.


 


(d)           Term A Loan.  Each of the Term A Lenders severally agrees
to make its portion of the term A loans (in the amount of its respective Term A
Loan Committed Amount) to the Borrower on the Funding Date in a single advance
in Dollars in an aggregate principal amount for all Term A Lenders of ONE
HUNDRED MILLION DOLLARS ($100,000,000) (the


 


45

















 


“Term A Loans”).  The Term A Loans may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may request.  Amounts repaid on the Term A Loans may not be
reborrowed.


 


(e)           Term B Loan.  Each of the Term B Lenders severally agrees
to make its portion of the term B loans (in the amount of its respective Term B
Loan Committed Amount) to the Borrower on the Funding Date in a single advance
in Dollars in an aggregate principal amount for all Term B Lenders of
THREE HUNDRED FIFTY MILLION DOLLARS ($350,000,000) (the “Term B Loans”).  The Term B Loans may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may
request.  Amounts repaid on the Term B
Loans may not be reborrowed.


 


(f)            Incremental Loan Facilities.  Any time after the Funding Date, the Borrower
may, upon written notice to the Administrative Agent, establish additional
credit facilities of the Borrower (collectively, the “Incremental Loan
Facilities”) by increasing the Aggregate Revolving Commitments hereunder as
provided in Section 2.01(g) (the “Incremental Revolving
Commitments”), or establishing new term loans hereunder as provided in Section 2.01(h) (the
“Incremental Term Loans”); provided that:


 


(i)            the aggregate
principal amount of loans and commitments for all the Incremental Loan
Facilities established after the Funding Date will not exceed $125.0 million;


 


(ii)           no Default or
Event of Default shall have occurred and be continuing or shall result after
giving effect to any such Incremental Loan Facility;


 


(iii)          the conditions
to the making of a Credit Extension under Section 5.02 shall be satisfied;
and


 


(iv)          the Borrower
shall have delivered a certificate to the Administrative Agent demonstrating
that, after giving effect on a Pro Forma Basis to the borrowings to be made
pursuant to such Incremental Loan Facility, as of the last day of the most recently
ended fiscal quarter at the end of which financial statements were required to
have been delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements, as of
the last day of the most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10.


 


In connection with the establishment of any Incremental Loan Facility, (A) neither
of the Lead Arrangers hereunder shall have any obligation to arrange for or
assist in arranging for any Incremental Loan Facility, (B) any Incremental
Loan Facility shall be subject to such conditions, including fee arrangements,
as may be provided in connection therewith and (C) none of the Lenders
shall have any obligation to provide commitments or loans for any Incremental
Loan Facility.


 


(g)           Establishment of Incremental
Revolving Commitments. 
Subject to Section 2.01(f), the Borrower may establish
Incremental Revolving Commitments by increasing the Aggregate


 


46

















 


Dollar Revolving Committed Amount or
Aggregate Approved Currency Revolving Committed Amount hereunder, provided
that:


 


(i)            any Person that
is not a Revolving Lender that is proposed to be a Lender under any such
increased Aggregate Revolving Committed Amount shall be reasonably acceptable
to the Administrative Agent and any Person that is proposed to provide any such
increased Aggregate Dollar Revolving Committed Amount (whether or not an
existing Dollar Revolving Lender) shall be reasonably acceptable to the L/C
Issuer;


 


(ii)           Persons
providing commitments for the Incremental Revolving Commitments pursuant to
this Section 2.01(g) will provide a Revolving Lender Joinder
Agreement;


 


(iii)          increases in
the Aggregate Revolving Committed Amount will be in a minimum principal amount
of $10.0 million and integral multiples of $5.0 million in excess thereof;


 


(iv)          if any
Revolving Loans are outstanding at the time of any such increase under the
applicable Revolving Facility, either (x) the Borrower will prepay such
Revolving Loans on the date of effectiveness of the Incremental Revolving
Commitments (including payment of any break-funding amounts owing under Section 3.05)
or (y) each Lender with an Incremental Revolving Commitment shall purchase
at par interests in each Borrowing of Revolving Loans then outstanding under
the applicable Revolving Facility such that immediately after giving effect to
such purchases, each Borrowing thereunder shall be held by each Lender in
accordance with its Pro Rata Share of such Revolving Facility (and, in
connection therewith, the Borrower shall pay all amounts that would have been
payable pursuant to Section 3.05 had the Revolving Loans so
purchased been prepaid on such date).


 


Any Incremental Revolving Commitment established hereunder shall have
terms identical to the Dollar Revolving Commitments or Approved Currency
Revolving Commitments, as the case may be, existing on the Closing Date, it
being understood that the Borrower and the Administrative Agent may make
(without the consent of or notice to any other party) any amendment to reflect
such increase in the Revolving Commitments.


 


(h)           Establishment of Incremental
Term Loans.  Subject to Section 2.01(f),
the Borrower may, at any time, establish additional term loan commitments
(including additional commitments for Term B Loans), provided that:


 


(i)    any Person that is not a Lender
or Eligible Assignee that is proposed to be a Lender shall be reasonably
acceptable to the Administrative Agent;


 


(ii)   Persons providing
commitments for the Incremental Term Loan pursuant to this Section 2.01(h) will
provide an Incremental Term Loan Joinder Agreement;


 


47

















 


(iii)          additional
commitments established for the Incremental Term Loan will be in a minimum
aggregate principal amount of $15.0 million and integral multiples of $5.0
million in excess thereof; provided that Incremental Term Loan
Commitments shall not be established on more than three (3) separate occasions;
and


 


(iv)          the final
maturity date of any Incremental Term Loan shall be no earlier than the Term B
Loan Termination Date;


 


(v)           the Applicable
Percentage (which for the purposes of this Section 2.01(h) being
deemed to include any similar interest margin measure) for any proposed
Incremental Term Loans shall be determined by the Borrower and the applicable
Lenders; provided that in the event that the Applicable Percentage for
any proposed Incremental Term Loans is greater than the Applicable Percentage
for the Term B Loans (other than such Incremental Term Loans), then the Applicable
Percentage for all Term B Loans (other than such Incremental Term Loans) shall
be increased to the extent necessary so that the Applicable Percentage for the
Term B Loans (other than such Incremental Term Loans) is equal to the Applicable
Percentage for the proposed Incremental Term Loans; provided, further,
that in determining the Applicable Percentage applicable to the Term B Loans
(other than such Incremental Term Loans) and the proposed Incremental Term
Loans, original issue discount (“OID”) or
upfront fees (other than underwriting fees paid only to Lenders under the
Incremental Term Loans in their capacity as such) (which upfront fees,
exclusive of the underwriting fees referred to above, shall be deemed to
constitute like amounts of OID) payable to the applicable Lenders of the Term B
Loans (other than such Incremental Term Loans) or the proposed Incremental Term
Loans in the primary syndication thereof shall be included (with OID being
equated to interest based on an assumed four-year life to maturity);


 


(vi)          the Weighted
Average Life to Maturity of any Incremental Term Loan shall not be shorter than
the Term B Loans (without giving effect to such Incremental Term Loans).


 


Any
Incremental Term Loan established hereunder shall be on terms to be determined
by the Borrower and the Lenders thereunder (and the Borrower and the
Administrative Agent may, without the consent of any other Lender, enter into
an amendment to this Credit Agreement to appropriately include the Incremental
Term Loans hereunder including, without limitation, to provide that such Incremental
Term Loans shall share in mandatory prepayments on the same basis as the Term A
Loans and Term B Loans); provided that, to the extent that such terms
and documentation are not consistent with the Term B Loans (except to the
extent permitted by clause (iv), (v) or (vi) above),
they shall be reasonably satisfactory to the Administrative Agent; provided
further that if any covenant, term (except to the extent permitted by clause
(iv), (v) or (vi) above), event of default or
remedy in any Incremental Term Loans is more favorable to the lenders
thereunder than the corresponding covenant, term, event of default or remedy in
the existing Term B Loans, or such Incremental Term Loans contain any covenant,
term (except to the extent permitted by clause (iv), (v) or (vi) above),
event of default or remedy that is not in the existing Credit Documents, the
Credit Parties and the Administrative Agent and/or the Collateral


 


48

















 


Agent shall, without the consent of or notice to any
other party, amend the documentation for such existing Credit Documents so that
such covenant, term, event of default and/or remedy is applicable to all Loans
and Commitments (or Term Loans and Term Loan Commitments, as applicable)
hereunder and/or to incorporate any such covenant, event of default and/or
remedy that is not in the existing Credit Documents.


 


2.02        Borrowings,
Conversions and Continuations.


 


(a)           Each Borrowing, each
conversion of Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to
the Administrative Agent by delivery to the Administrative Agent of a written
Loan Notice appropriately completed and signed by a Responsible Officer of the
Borrower.  Each such notice must be
received by the Administrative Agent not later than 12:00 noon (New York time) (i) with
respect to Eurodollar Rate Loans, three (3) Business Days (or, in the case
of Approved Currency Revolving Loans denominated in Alternative Currency, four (4) Business
Days) prior to the requested date of, (ii) with respect to Base Rate Loans
denominated in Dollars, on the requested date of or (iii) in the case of
Base Rate Loans denominated in Canadian Dollars, one Business Day prior to the
requested date of, any Borrowing, conversion or continuation.  Except in the case of any Revolving Loan that
is borrowed to refinance a Swingline Loan or L/C Borrowing (which may be in an
amount sufficient to refinance such Swingline Loan or L/C Borrowing), each Borrowing,
conversion or continuation shall be in a principal amount of (i) with respect
to Eurodollar Rate Loans (A) denominated in Dollars, $1.0 million or a
whole multiple of $1.0 million in excess thereof, (B) denominated in
Euros, €1.0 million or a whole multiple of €1.0 million in excess thereof, (C) denominated
in Sterling, £1.0 million or a whole multiple of £1.0 million in excess thereof
and (D) denominated in Canadian Dollars, C$1.0 million or a whole multiple
of C$1.0 million, (ii) with respect to Base Rate Loans denominated in
Dollars, $1,000,000 or a whole multiple of $100,000 in excess thereof or (iii) in
the case of Base Rate Loans denominated in Canadian Dollars, C$1,000,000 or an
integral multiple of C$100,000 in excess thereof.  Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower’s request is with respect
to Revolving Loans, Term A Loans or Term B Loans, (ii) whether such
request is for a Borrowing, conversion, or continuation, (iii) the
requested date of such Borrowing, conversion or continuation (which shall be a
Business Day), (iv) the principal amount of Loans to be borrowed,
converted or continued, (v) the Type of Loans to be borrowed, converted or
continued, (vi) if such Loans are Approved Currency Revolving Loans, the
currency of such Loans (which shall be an Approved Currency) and (vii) if
applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation (other than with respect to Approved
Currency Revolving Loans denominated in an Alternative Currency other than
Canadian Dollars), then the applicable Loans shall be made as, or converted to,
Base Rate Loans.  Any automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
Loan Notice, but fails to specify an Interest Period, the Interest Period will
be deemed to be one (1) month.


 


(b)           Following receipt of a Loan
Notice, the Administrative Agent shall promptly notify each Lender of the amount
of its Pro Rata Share of the applicable Loans, and if no timely


 


49

















 


notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection.  In the case of a
Borrowing denominated in Dollars, each Lender shall make the amount of its Loan
available to the Administrative Agent in Dollars in immediately available funds
at the Administrative Agent’s Office not later than 2:00 p.m. (New York
time) on the Business Day specified in the applicable Loan Notice.  In the case of a Borrowing denominated in an
Alternative Currency, each Lender shall make the amount of its Loan available
to the Administrative Agent in the applicable Alternative Currency in
immediately available funds at the Administrative Agent’s Office not later than
2:00 p.m. (London time) on the Business Day specified in the applicable
Loan Notice.  Upon satisfaction of the
applicable conditions set forth in Section 5.03 (and, if such
Borrowing is the initial Credit Extension, Section 5.02), 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.


 


(c)           Except as otherwise provided
herein, without the consent of the Required Lenders, a Eurodollar Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan.  During the
existence of a Default or Event of Default, at the request of the Required
Lenders or the Administrative Agent, (i) no Loan denominated in Dollars or
Canadian Dollars may be requested as, converted to or continued as a Eurodollar
Rate Loan and (ii) any outstanding Eurodollar Rate Loan denominated in
Dollars or Canadian Dollars shall be converted to a Base Rate Loan on the last
day of the Interest Period with respect thereto.


 


(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 Adjusted 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 or JPMorgan Chase
Bank, N.A., Toronto Branch’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


 


(e)           After giving effect to all
Borrowings, all conversions of Revolving Loans from one Type to the other, and
all continuations of Revolving Loans as the same Type, there shall not be more
than ten (10) Interest Periods in effect with respect to the Revolving
Loans and five (5) Interest Periods with respect to the Term A Loans
and Term B Loans.


 


2.03        Additional
Provisions with Respect to Letters of Credit.


 


(a)           Obligation to Issue or Amend.


 


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


 


(A)          subject to Section 2.03(b)(iii), the
expiry date of such requested Letter of Credit would occur more than twelve
(12) months after the date of issuance or last extension, unless the Administrative
Agent and the L/C Issuer have approved such expiry date; or


 


50














 


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


 


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


 


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


 


(B)           the issuance of such Letter of Credit would violate
any Law applicable to the L/C Issuer;


 


(C)           except as otherwise agreed by the L/C Issuer and the
Administrative Agent, such Letter of Credit is in an initial stated amount less
than $20,000;


 


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


 


(E)           except as otherwise agreed by the L/C Issuer, such
Letter of Credit contains provisions for automatic reinstatement of the stated
amount after any drawing thereunder; or


 


(F)           a default of any Dollar Revolving Lender’s
obligations to fund under Section 2.03(c) exists or any Dollar
Revolving Lender is at such time a Defaulting Lender, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or such Dollar
Revolving Lender to eliminate the L/C Issuer’s risk with respect to such Dollar
Revolving Lender.


 


(iii)          The L/C Issuer shall not be
under any 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.


 


(iv)          The L/C Issuer shall act on
behalf of the Dollar Revolving Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C Issuer shall
have all of the benefits and immunities (A) provided to the Administrative
Agent in Article X


 


51

















 


with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such Letters of
Credit as fully as if the term “Administrative Agent” as used in Article X
included the L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.


 


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


 


(i)            Each Letter of Credit shall
be issued or amended, as the case may be, upon the request of the Borrower
delivered to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a L/C Application, appropriately completed and signed by a Responsible
Officer.  Such L/C Application must be
received by the L/C Issuer and the Administrative Agent (A) not later than
12:00 noon (New York time) at least two (2) Business Days prior to the
proposed issuance date or date of amendment, as the case may be, of any Letter
of Credit denominated in Dollars and (B) not later than 12:00 noon (London
time) at least five (5) Business Days prior to the proposed issuance date
or date of amendment, as the case may be, of any Letter of Credit denominated
in an Alternative Currency (or, in each case, such later date and time as the
L/C Issuer and the Administrative Agent may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be.  In the
case of a request for an initial issuance of a Letter of Credit, such L/C
Application shall specify in form and detail reasonably satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount and currency thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may reasonably require. 
In the case of a request for an amendment of any outstanding Letter of
Credit, such L/C Application shall specify in form and detail satisfactory to
the L/C Issuer: (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; (D) the purpose and nature of the
requested Letter of Credit; and (E) such other matters as the L/C Issuer
may reasonably require.  Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


(ii)           Promptly after receipt of
any L/C 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 L/C Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from the Administrative Agent, any Dollar Revolving Lender or any Credit
Party, at least one (1) Business Day prior to the requested date of issuance
or amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Sections 5.02 (if issued on the Funding Date)
and 5.03 shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower (or Subsidiary or BCV) or enter into
the applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Dollar Revolving Lender shall be deemed


 


52

















 


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 such Dollar Revolving Lender’s Dollar
Revolving Commitment Percentage thereof.


 


(iii)          If the Borrower so requests
in any L/C Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such 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 “Non-Extension Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued (but in any event not later than 30 days prior to the
scheduled expiry date thereof).  Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Dollar Revolving Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the L/C Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the
L/C Issuer has determined that it would not be permitted or would have no obligation
at such time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Non-Extension Notice Date from the Administrative Agent or the Borrower that
one or more of the applicable conditions specified in Section 5.03
is not then satisfied, and in each case directing the L/C Issuer not to permit
such extension.


 


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


 


(c)           Drawings and Reimbursements;
Funding of Participations.


 


(v)           Upon any drawing under any
Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  In the
case of a Letter of Credit denominated in Dollars, the Borrower shall reimburse
the L/C Issuer in Dollars.  In the case
of a Letter of Credit denominated in an Alternative Currency, the Borrower
shall reimburse the L/C Issuer in such Alternative Currency unless (x) the
L/C Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars, or (y) in the absence of any such
requirement for reimbursement in Dollars, the Borrower shall have notified the
L/C Issuer promptly following receipt of the notice of drawing that the
Borrower will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in
Dollars of a drawing as of the applicable Revaluation Date under a Letter of
Credit denominated in an Alternative Currency, the L/C Issuer shall notify the
Borrower of the Dollar Equivalent of the amount of the drawing promptly
following the determination thereof.  Not
later than (x) 12:00 noon (New York time) on or prior to the date that is
three (3) Business Days following the date that the Borrower receives
notice from the L/C Issuer of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, and (y) the Applicable Time on or
prior to the date that is three (3) Business Days following the date the


 


53

















 


Borrower receives notice from the L/C Issuer
of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in
an Alternative Currency (each such date of payment by the L/C Issuer under a
Letter of Credit, an “Honor Date”), the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in Dollars or in the applicable
Alternative Currency, as the case may be, in an amount equal to the amount of
such drawing; provided, that the Borrower, and the applicable L/C Issuer
may, each in their discretion, with the consent of the Administrative Agent and
so long as such arrangements do not adversely affect the rights of any Lender
in any material respect, enter into Letter of Credit cash collateral prefunding
arrangements acceptable to them for the purpose of  reimbursing Letter of Credit draws.  If the Borrower does not to reimburse the L/C
Issuer on the Honor Date, the Administrative Agent, at the request of the L/C
Issuer, shall promptly notify each Dollar Revolving Lender of the Honor Date,
the amount and denomination of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof) (the “Unreimbursed Amount”),
and the amount of such Dollar Revolving Lender’s Dollar Revolving Commitment
Percentage thereof.


 


(vi)          Each Dollar Revolving Lender
shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer,
in Dollars at the Administrative Agent’s Office for payments in Dollars in an
amount equal to its Dollar Revolving Commitment Percentage of the Unreimbursed
Amount not later than 1:00 p.m. (New York time) on the Business Day
specified in such notice by the Administrative Agent.


 


(vii)         With respect to any
Unreimbursed Amount, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at (i) through and including the third Business Day
following the Honor Date, the rate of interest applicable to Base Rate
Revolving Loans and (ii) thereafter, the Default Rate.  In such event, each Dollar Revolving 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 Revolving Lender in satisfaction of its participation obligation
under this Section 2.03.


 


(viii)        Until a Revolving Lender
funds its 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 Revolving Lender’s Dollar Revolving Commitment Percentage
of such amount shall be solely for the account of the L/C Issuer.


 


(ix)           Each Dollar Revolving Lender’s
obligation to make L/C Advances to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.03(c), shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such Revolving 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 Event of Default, (C) non-compliance with the conditions
set forth in Section 5.03, or (D) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided
that the L/C Issuer shall have complied with the provisions of Section 2.03(b)(ii).  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


 


54

















 


any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.


 


(x)            If any Dollar Revolving
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 Revolving 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 Revolving 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, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. 
If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s L/C Advance in respect of the
relevant L/C Borrowing.  A certificate of
the L/C Issuer submitted to any Dollar Revolving Lender or Approved Currency Revolving
Lender, as applicable, (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.


 


(d)           Repayment of Participations.


 


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


 


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


 


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


 


55

















 


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


 


(ii)           the existence of any claim,
counterclaim, setoff, defense or other right that the Borrower, any Subsidiary
or BCV 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 Credit Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


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


 


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


 


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


 


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


 


(f)            Role of the L/C Issuer in such Capacity. 
Each Revolving Lender and the Borrower agrees 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, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable to any Revolving Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Required Dollar Revolving Lenders; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The


 


56

















 


Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to such Borrower’s
use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as the Borrower may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (vi) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower shall have a claim against the L/C Issuer, and
the L/C Issuer shall 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 that are determined by a court of competent
jurisdiction to have been caused by the L/C Issuer’s willful misconduct or
gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit.  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, that 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 a L/C Borrowing, or
(ii) if, as of the L/C Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn the Borrower shall immediately
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 L/C Expiration Date, as the case may be).  The Administrative Agent may, at any time and
from time to time after the initial deposit of cash collateral, request that
additional cash collateral be provided in order to protect against the results
of exchange rate fluctuations.  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 such L/C Obligations, cash or deposit account balances
pursuant to customary documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuer (which documents
are hereby consented to by the Lenders). 
Derivatives of such term have corresponding meanings.  Cash collateral shall be maintained in
blocked, interest bearing deposit accounts or money market fund accounts at the
Administrative Agent.


 


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


 


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


 


57

















 


inures to the benefit of the Borrower, and
that the Borrower’s business derives substantial benefits from the businesses
of such Subsidiaries and BCV.


 


(j)            Letter of Credit Fees.  The Borrower shall pay Letter of Credit Fees
as set forth in Section 2.09(b).


 


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


 


2.04        Additional Provisions with Respect to
Swingline Loans.


 


(a)           Borrowing Procedures.  Each Swingline Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swingline Lender and the
Administrative Agent by delivery to the Swingline Lender and the Administrative
Agent of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Each such notice must be received by the Swingline Lender and the
Administrative Agent not later than 2:00 p.m. (New York time) on the
requested borrowing date, 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. 
Promptly after receipt by the Swingline Lender of any Loan Notice, the
Swingline Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Loan Notice and,
if not, the Swingline Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. 
Unless the Swingline Lender has received notice (by telephone or in
writing) from the Administrative Agent prior to 3:00 p.m. (New York time)
on the date of the proposed Swingline Borrowing (A) directing the
Swingline Lender not to make such Swingline Loan as a result of the limitations
set forth in this Article II, or (B) that one or more of the
applicable conditions specified in Section 5.02 (if on the Funding
Date) and Section 5.03 is not then satisfied, then, subject to the
terms and conditions hereof, the Swingline Lender will, not later than 4:00 p.m.
(New York time) on the borrowing date specified in such Loan Notice, make the
amount of its Swingline Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swingline Lender in
immediately available funds.


 


(b)           Refinancing.


 


(i)            The Swingline Lender at any
time in its sole and absolute discretion may (and, in any event, within ten
Business Days of the applicable Swingline Borrowing, shall) request that each Revolving
Lender fund its risk participations in Swingline Loans in an amount equal to
such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage of
Swingline Loans then outstanding.  Each
Dollar Revolving Lender shall make an amount equal to its Dollar Revolving
Commitment Percentage of the amount specified in such notice available to the
Administrative Agent in immediately available funds for the account of the
Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m.
(New York time) on the day specified in such notice.  The Administrative Agent shall remit the
funds so received to the Swingline Lender.


 


(ii)           Each Dollar Revolving Lender’s
funding of its risk participation in the relevant Swingline Loan and each
Dollar Revolving Lender’s payment to the Administrative Agent for


 


58

















 


the account of the Swingline Lender pursuant
to Section 2.04(b)(i) shall be deemed payment in respect of
such participation.


 


(iii)          If any Dollar Revolving
Lender fails to make available to the Administrative Agent for the account of
the Swingline Lender any amount required to be paid by such Dollar Revolving
Lender pursuant to the foregoing provisions of this Section 2.04(b) by
the time specified in Section 2.04(b)(i), the Swingline Lender
shall be entitled to recover from such Dollar Revolving 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 Swingline Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swingline
Lender in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the
Swingline Lender in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s funded participation in the relevant Swingline Loan.  A certificate of the Swingline Lender
submitted to any Dollar Revolving Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.


 


(iv)          Each Dollar Revolving Lender’s
obligation to purchase and fund risk participations in Swingline Loans pursuant
to this Section 2.04(b) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Dollar Revolving
Lender may have against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default
or Event of Default, (C) non-compliance with the conditions set forth in Section 5.03,
or (D) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that Swingline Lender has complied with
the provisions of Section 2.04(a). 
No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swingline Loans, together
with interest as provided herein.


 


(c)           Repayment of Participations.


 


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


 


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


 


59

















 


Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Credit Agreement.


 


(d)           Interest for Account of
Swingline Lender.  The
Swingline Lender shall be responsible for invoicing the Borrower for interest
on the Swingline Loans.  Until each
Dollar Revolving Lender funds its risk participation pursuant to this Section 2.04
of any Swingline Loan, interest in respect thereof shall be solely for the
account of the Swingline Lender.


 


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


 


2.05        Repayment of Loans.


 


(a)           Revolving Loans.  The Borrower shall repay to the Dollar Revolving
Lenders the Outstanding Amount of Dollar Revolving Loans on the Revolving
Termination Date.  The Borrower shall
repay to the Approved Currency Revolving Lenders the Outstanding Amount of Approved
Currency Revolving Loans on the Revolving Termination Date.


 


(b)           Swingline Loans.  The Borrower shall repay to the Swingline
Lender the Outstanding Amount of the Swingline Loans on the Revolving
Termination Date.


 


(c)           Term A Loans.  The Borrower shall repay the aggregate
principal amount of the Term A Loans (shown as a percentage of the original
aggregate principal amount of the Term A Loans) in quarterly installments
on the dates set forth below as follows:


 


	
  Date

  	
   

  	
  Principal

  Amortization

  Payment

  (shown as a

  Percentage of

  Original Principal

  Amount)

  	
   

  	
  Date

  	
   

  	
  Principal

  Amortization

  Payment

  (shown as a

  Percentage of

  Original Principal

  Amount)

  	
   

  
	
  March 31, 2011

  	
   

  	
  2.5%

  	
   

  	
   

  	
  December 31, 2012

  	
   

  	
  3.75%

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  2.5%

  	
   

  	
   

  	
  March 31, 2013

  	
   

  	
  25.00%

  	
   

  	
   

  
	
  September 30, 2011

  	
   

  	
  2.5%

  	
   

  	
   

  	
  June 30, 2013

  	
   

  	
  25.00%

  	
   

  	
   

  
	
  December 31, 2011 

  	
   

  	
  2.5%

  	
   

  	
   

  	
  Term A Loan 

  	
   

  	
  25.00%

  	
   

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.75%

  	
   

  	
   

  	
  Termination Date

  	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2012

  	
   

  	
  3.75%

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2012

  	
   

  	
  3.75%

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(d)           Term B Loans.  The principal amount of the Term B Loans
shall be payable in eleven consecutive quarterly installments which, except for
the final installment (which shall be due and payable on the Term B Loan
Termination Date), shall be due on the last day of each March, June, September and
December, beginning with March 31, 2011. 
Each of the first ten quarterly installments shall be in the principal
amount equal to 0.25% of the aggregate principal amount of all Term B Loans
funded on the Funding Date and the eleventh (11th) and final


 


60

















 


installment shall be due and payable on the
Term B Loan Termination Date in the amount of the remaining principal balance
of Term B Loans.


 


2.06        Prepayments.


 


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


 


(i)    in the case of Loans other
than Swingline Loans, (A) notice thereof must be received by 12:00 noon
(New York time) by the Administrative Agent at least three (3) Business
Days (or, in the case of Approved Currency Revolving Loans denominated in
Alternative Currency other than Base Rate Loans denominated in Canadian
Dollars, at least four (4) Business Days) prior to the date of prepayment,
in the case of Eurodollar Rate Loans, and one (1) Business Day prior to
the date of prepayment, in the case of Base Rate Loans, (B) any such prepayment
shall be a minimum principal amount of (u) $1.0 million and integral multiples
of $1.0 million in excess thereof, in the case of Eurodollar Rate Loans denominated
in Dollars, (v) €1.0 million and integral multiples of €1.0 million in
excess thereof, in the case of Eurodollar Rate Loans denominated in Euros, (w) £1.0
million and integral multiples of £1.0 million in excess thereof, in the case
of Eurodollar Rate Loans denominated in Sterling, (x) C$1.0 million and
integral multiples of C$1.0 million in excess thereof, in the case of
Eurodollar Rate Loans denominated in Canadian Dollars, (y) C$1,000,000 and
integral multiples of C$100,000 in excess thereof, in the case of Base Rate Loans
denominated in Canadian Dollars and (z) $1,000,000 and integral multiples
of $100,000 in excess thereof, in the case of Base Rate Loans denominated in
Dollars, or, in each case the entire remaining principal amount thereof, if
less; and


 


(ii)   in the case of Swingline
Loans, (A) notice thereof must be received by the Swingline Lender by 1:00 p.m.
(New York time) on the date of prepayment (with a copy to the Administrative
Agent), and (B) any such prepayment shall be in the same minimum principal
amounts as for advances thereof (or any lesser amount that may be acceptable to
the Swingline Lender).


 


Each such notice of voluntary prepayment hereunder shall be irrevocable
and shall specify the date and amount of prepayment and the Loans and Types of
Loans that are being prepaid and, if Eurodollar Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. 
The Administrative Agent will give prompt notice to the applicable
Lenders of any prepayment on the Loans and the Lender’s interest therein.  Prepayments of Eurodollar Rate Loans
hereunder shall be accompanied by accrued interest on the amount prepaid and
breakage or other amounts due, if any, under Section 3.05.  Notwithstanding the foregoing, a notice of
voluntary prepayment delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.


 


61














 


(b)           Mandatory Prepayments.  Subject in each case to Section 2.06(c):


 


(i)            Revolving Commitments.


 


(A)          If at any time (1) the Outstanding Amount of
Dollar Revolving Obligations shall exceed the Aggregate Dollar Revolving
Committed Amount, (2) the Outstanding Amount of Approved Currency
Revolving Loans shall exceed the Aggregate Approved Currency Revolving
Committed Amount, or (3) the Outstanding Amount of Swingline Loans shall
exceed the Swingline Sublimit, immediate prepayment will be made on or in
respect of the applicable Revolving Obligations in an amount equal to the
difference; provided, however, that L/C Obligations will not be
Cash Collateralized hereunder until the Revolving Loans and Swingline Loans
have been paid in full.


 


(B)           If the Administrative Agent notifies the Borrower at
any time that the Outstanding Amount of all L/C Obligations at such time
exceeds an amount equal to 105% of the L/C Sublimit then in effect, then,
within two (2) Business Days after receipt of such notice, the Borrower
shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient
to reduce such Outstanding Amount as of such date of payment to an amount not
to exceed 100% of the L/C Sublimit then in effect.  The Administrative Agent may, at any time and
from time to time after the initial deposit of such cash collateral, request
that additional cash collateral be provided in order to protect against the
results of further exchange rate fluctuations.


 


(ii)           Subject Dispositions and
Involuntary Dispositions.  On or
before the applicable date set forth in the next sentence, prepayment will be
made on the Loan Obligations in an amount equal to one hundred percent (100%)
of the Net Cash Proceeds received from any Subject Disposition or Involuntary
Disposition by any member of the Consolidated Group occurring after the Closing
Date, but solely to the extent (x) the Net Cash Proceeds received in such
Subject Disposition (or series of related Subject Dispositions) or Involuntary
Disposition (or series of related Involuntary Dispositions) exceed $5.0
million, (y) the Net Cash Proceeds received in all Subject Dispositions or
Involuntary Dispositions effected during the fiscal year in which the
applicable Subject Disposition or Involuntary Disposition takes place exceeds
$10.0 million and (z) such Net Cash Proceeds are not used to acquire,
maintain, develop, construct, improve, upgrade or repair Property (other than
inventory, accounts receivable, cash or Cash Equivalents) useful in the
business of the Consolidated Group or to make investments in Permitted Acquisitions
that are otherwise permitted hereunder within twelve (12) months of the date of
such Subject Disposition or Involuntary Disposition; provided that such
a reinvestment shall not be permitted if an Event of Default shall have
occurred and be continuing at the time the Borrower commits to make such
reinvestment or, if no such commitment is made, the time the reinvestment is
actually made, and in either such circumstance such Net Cash Proceeds shall be
used to make prepayments on the Loans. 
Any such prepayment from any Net Cash Proceeds required by the previous
sentence shall be made (x) in the case of a Major Disposition in respect
of which the notice referred to in Section 7.02(g) has not
been delivered on or before the fifteenth (15th) Business Day following the
receipt of the Net Cash Proceeds from such Major Disposition or to the extent
such notice does not indicate reinvestment is intended with the Net Cash Proceeds
of such Major Disposition, on or before the twenty-fifth (25th) Business Day
following receipt of such Net Cash Proceeds and (y) in any other case,
promptly after the Borrower determines that it


 


62

















 


will not reinvest such Net Cash Proceeds in
accordance with the terms and limitations of the previous sentence, but in no
event later than 366 days following the receipt of such Net Cash Proceeds.  To the extent that the Borrower has
determined in good faith that repatriation to the United States of any or all
the Net Cash Proceeds of any Subject Disposition or Involuntary Disposition by
a Foreign Subsidiary would have a material adverse tax consequence to the
Borrower and its Subsidiaries, the Net Cash Proceeds so affected may be
retained by such Foreign Subsidiary, provided that on or before the date
on which any such Net Cash Proceeds would otherwise have been required to be
applied to reinvestments or prepayments pursuant to the foregoing provisions of
this Section 2.06(b)(ii), the Borrower applies an amount equal to
such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash
Proceeds had been received by the Borrower rather than such Foreign Subsidiary,
less the amount of additional taxes (to the extent such taxes are not already
deducted pursuant to the definition of Net Cash Proceeds) that would have been
payable or reserved against if such Net Cash Proceeds had been repatriated to
the United States.


 


(iii)          Indebtedness.  Prepayment will be made on the Loan
Obligations in an amount equal to one hundred percent (100%) of the Net Cash
Proceeds received from any incurrence or issuance of Indebtedness after the
Closing Date (other than Indebtedness expressly permitted to be incurred or
issued pursuant to Section 8.03). 
Any prepayment in respect of such Indebtedness hereunder will be payable
on the Business Day following receipt by the Borrower or other members of the
Consolidated Group of the Net Cash Proceeds therefrom.


 


(iv)          Consolidated Excess Cash
Flow.  If for any fiscal year of the
Borrower ending after December 31, 2008 there shall be Consolidated Excess
Cash Flow, then, on a date that is no later five Business Days following the
date that financial statements for such fiscal year are required to be
delivered pursuant to Section 7.01(a), the Loan Obligations shall
be prepaid by an amount equal to the ECF Application Amount for such fiscal
year.


 


(v)           Spin-Off.  If the Spin-Off and the other material
transactions that, pursuant to the terms of the Separation Agreement, are to
occur prior to or substantially concurrently with the Spin-Off shall not have
been consummated on or prior to the fifth Business Day following the Funding
Date, then on such fifth Business Day (x) all of the Loan Obligations
shall be required to be prepaid, (y) the Revolving Commitment of each Revolving
Lender shall be reduced to zero and (z) the Borrower shall Cash
Collateralize the then Outstanding Amount of all L/C Obligations.


 


(vi)          Eurodollar Prepayment
Account.  If the Borrower is required to
make a mandatory prepayment of Eurodollar Rate Loans under this Section 2.06(b),
so long as no Event of Default exists, the Borrower shall have the right, in
lieu of making such prepayment in full, to deposit an amount equal to such
mandatory prepayment with the Administrative Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the Administrative
Agent) by and in the sole dominion and control of the Administrative
Agent.  Any amounts so deposited shall be
held by the Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the applicable
Eurodollar Rate Loans at the earliest of (x) the end of the current
Interest Periods applicable thereto, (y) three months following the date
of such deposit and (z) at the election of the Administrative Agent, upon
the occurrence of an Event of Default. 
At the request of the Borrower, amounts so


 


63

















 


deposited shall be invested by the
Administrative Agent in Cash Equivalents maturing on or prior to the date or
dates on which it is anticipated that such amounts will be applied to prepay
such Eurodollar Rate Loans; any interest earned on such Cash Equivalents will
be for the account of the Borrower and the Borrower will deposit with the
Administrative Agent the amount of any loss on any such Cash Equivalents to the
extent necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.


 


(c)           Application.  Within each Loan, prepayments will be applied
first to Base Rate Loans, then to Eurodollar Rate Loans in direct order of
Interest Period maturities.  In addition:


 


(i)    Voluntary Prepayments.  Prepayments of the Term A Loans or Term B
Loans pursuant to Section 2.06(a) shall be applied first in
direct order of maturity in respect of the principal amortization payments due
on such Term A Loans under Section 2.05(c) or Term B Loans
under Section 2.05(d), as applicable, within the twelve (12) months
following such prepayment, and second pro rata to the remaining principal
amortization installments under Section 2.05(c) or Section 2.05(d) on
the Term A Loans or Term B Loans, as the case may be.  Voluntary prepayments on the Loan Obligations
will be paid by the Administrative Agent to the Lenders ratably in accordance
with their respective interests therein.


 


(ii)   Mandatory Prepayments.  Mandatory prepayments on the Loan Obligations
will be paid by the Administrative Agent to the Lenders ratably in accordance
with their respective interests therein; provided that:


 


(A)  Mandatory prepayments in
respect of the Revolving Commitments under subsection (b)(i)(A) above
shall be applied to the respective Revolving Obligations as appropriate.


 


(B)   Mandatory prepayments in
respect of Subject Dispositions and Involuntary Dispositions under subsection
(b)(ii) above, Indebtedness under subsection (b)(iii) and
Consolidated Excess Cash Flow under subsection (b)(iv) above shall
be applied (i) first to the Term A Loans and Term B Loans (pro rata based
on the amount of each such tranche of Loans then outstanding), and with respect
to (x) Term A Loans, first in direct order of maturity in respect of the
principal amortization payments under Section 2.05(c) due on
the Term A Loans within the twelve (12) months following such prepayment, and
second pro rata to the remaining principal amortization installments under Section 2.05(c) on
the Term A Loans, until paid in full, (y) Term B Loans, first in direct
order of maturity in respect of the principal amortization payments under Section 2.05(d) due
on the Term B Loans within the twelve (12) months following such prepayment,
and second pro rata to the remaining principal amortization installments under Section 2.05(d) on
the Term B Loans, until paid in full, then (ii) to the Revolving Obligations
(without permanent reduction of the Revolving Commitments); provided
that if any events in subsection (b)(ii) or subsection (b)(iii) occur
prior to the Funding Date and on or following the Closing Date, then the amount
that would have otherwise been required to be used to make prepayments of the
Loans shall


 


64

















 


be
applied first, to reduce the Term A Loan Commitments and Term B Loan Commitments
and second to reduce the Revolving Commitments.


 


2.07        Termination
or Reduction of Commitments.


 


Voluntary
Reductions.  The Commitments hereunder may be permanently
reduced in whole or in part by notice from the Borrower to the Administrative
Agent; provided that (i) any such notice thereof must be received
by 12:00 noon (New York time) at least five (5) Business Days prior to the
date of reduction or termination and any such reduction or terminations shall
be in a minimum amount of $1.0 million and integral multiples of $1.0 million
in excess thereof; and (ii) the Commitments may not be reduced to an
amount less than the Outstanding Amount of Loan Obligations then outstanding
thereunder.  The Administrative Agent
will give prompt notice to the Lenders of any such reduction in
Commitments.  Any reduction of any
Commitments shall be applied to the Commitment of each applicable Lender
according to its Pro Rata Share.  All
commitment or other fees accrued with respect to any Commitment through the
effective date of any termination thereof shall be paid on the effective date
of such termination.  A notice of
termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in which
case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.


 


2.08        Interest.


 


(a)           Subject to the provisions of
subsection (b) below, (i) each Eurodollar Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Adjusted Eurodollar Rate for such Interest
Period plus the Applicable Percentage; (ii) each Loan that is a
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 Percentage; and (iii) each Swingline 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 Percentage.


 


(b)           If any amount payable by the
Borrower under any Credit Document is not paid when due and an Event of Default
has occurred and is continuing under Section 9.01(a), (f) or
(h), whether at stated maturity, by acceleration or otherwise, then such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable
Law.


 


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


 


(d)           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.


 


65

















 


2.09        Fees.


 


(a)           Facility Fee; Commitment Fee.  The Borrower shall pay to the Administrative
Agent for the account of each (w) Dollar Revolving Lender in accordance
with its Dollar Revolving Commitment Percentage thereof, a facility fee (the “Dollar
Revolving Facility Fee”) equal to 0.50% per annum of the actual daily
amount of the Aggregate Dollar Revolving Committed Amount, (x) Approved
Currency Revolving Lender in accordance with its Approved Currency Revolving
Commitment Percentage thereof, a facility fee (the “Approved Currency Revolving
Facility Fee” and together with the Dollar Revolving Facility Fee, the “Facility
Fees”) equal to 0.50% per annum of the actual daily amount of the Aggregate
Approved Currency Revolving Committed Amount, (y) Term A Lender in
accordance with its Term A Loan Commitment Percentage thereof, a commitment fee
(the “Term A Commitment Fee”) equal to 0.50% per annum of the
actual daily amount of the Aggregate Term A Loan Committed Amount during the
period between the Closing Date and the Funding Date and (z) Term B
Lender, in accordance with its Term B Loan Percentage thereof, a commitment fee
(the “Term B Commitment Fee” and together with the Term A Commitment
Fee, the “Commitment Fees”) equal to 3.25% per annum of the actual daily
amount of the Aggregate Term B Loan Committed Amount during the period between
the Closing Date and the Funding Date; provided that, if the Borrower
continues to have any outstanding Revolving Obligations after the termination
of the Commitment Period, then, with respect to each Revolving Lender to whom
such Revolving Obligations are then owed, such facility fee shall continue to
accrue in accordance with such Lender’s Dollar Revolving Committed Percentage
or Approved Currency Revolving Committed Percentage thereof, as the case may
be, of the actual daily amount of the Aggregate Dollar Revolving Committed
Amount or Aggregate Approved Currency Revolving Committed Amount (without
giving effect to the expiration of such Commitment Period), as the case may be,
from and including the date the Commitment Period terminates to but excluding
the date on which such Revolving Obligations are no longer outstanding.  Notwithstanding the foregoing, if the Funding
Date occurs 60 days or more after the Closing Date, the Commitment Fee and Facility
Fee for the period from and including the Closing Date to but excluding the
Funding Date shall be increased to 0.75% per annum.  The Commitment Fees and Facility Fees shall
accrue at all times during the applicable Commitment Period (and, following the
expiration of the Commitment Period, the Facility Fees shall continue to accrue
to the extent set forth above), including at any time during which one or more
of the conditions in Article V is not met, and shall be due and
payable quarterly in arrears on the tenth (10th) day of each
January, April, July and October (for the Commitment Fee and Facility
Fee accrued during the previous calendar quarter), commencing with the first
such date to occur after the Closing Date, and on the Revolving Termination
Date.  The Commitment Fee and Facility
Fee shall be calculated quarterly in arrears.


 


(b)           Letter of Credit Fees.


 


(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent, for the account of each Dollar Revolving Lender in accordance with its
Dollar Revolving Commitment Percentage, a Letter of Credit fee, in Dollars, for
each Letter of Credit, an amount equal to the Applicable Percentage for Dollar
Revolving Loans that are Eurodollar Loans multiplied by the daily maximum
undrawn Outstanding Amount under such Letter of Credit (the “Letter of
Credit Fees”).  For purposes of
computing the daily undrawn Outstanding Amount under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.10.


 


66

















 


The Letter of Credit Fees shall be computed
on a quarterly basis in arrears, and shall be due and payable on the tenth (10th)
day of each January, April, July and October (for the Letter of
Credit Fees accrued during the previous calendar quarter), commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
L/C Expiration Date and thereafter on demand. 
If there is any change in the Applicable Percentage during any quarter,
the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Percentage separately for each period
during such quarter that such Applicable Percentage was in effect.  Notwithstanding anything to the contrary
contained herein, while any Event of Default has occurred and is continuing
under Section 9.01(a), (f) or (h), all Letter of
Credit Fees shall accrue at the Default Rate.


 


(ii)           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, 0.125% of the daily undrawn Outstanding Amount under such Letter of
Credit on a quarterly basis in arrears. 
Such fronting fee shall be due and payable on the tenth (10th) day of
each January, April, July and October (for fronting fees accrued
during the previous calendar quarter or portion thereof, in the case of the
first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the L/C Expiration Date and thereafter on
demand.  For purposes of computing the
daily undrawn Outstanding Amount under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.10.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


(c)           Funding Fee.  On the Funding Date, the Borrower shall pay
to the Administrative Agent for the account of (i) each Term B Lender a
fee equal to 1.50% of its Term B Loan Commitment and (ii) each other Lender,
the fees set forth on Schedule 2.09(c).


 


(d)           Other Fees.  The Borrower shall pay to JPMCB, the Lead
Arrangers, Wachovia Bank, N.A., Barclays Bank PLC, Wachovia Capital Markets,
LLC, Barclays Capital, Bank of America, N.A., Merrill Lynch Bank USA and Morgan
Stanley Senior Funding, for their own respective accounts, fees in the amounts
and at the times specified in the Fee Letter. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


The
Borrower shall pay to the Lenders 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.


 


2.10        Computation
of Interest and Fees.


 


All
computations of interest for Base Rate loans denominated in Canadian Dollars
and Base Rate Loans denominated in Dollars 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


 


67

















 


computed on the basis of a 365-day year), or, in the
case of interest in respect of Eurodollar Loans denominated in Alternative
Currencies as to which market practice differs from the foregoing, in
accordance with such market practice. 
Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.11(a),
bear interest for one (1) 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.


 


2.11        Payments
Generally; Administrative Agent’s Clawback.


 


(a)           General.  All payments to be made by any Credit Party
hereunder shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.  All payments
of principal and interest on any Loan shall be payable in the same currency as
such Loan is denominated.  All payments of
fees pursuant to Section 2.09 shall be payable in Dollars.  All payments in respect of Unreimbursed
Amounts shall be payable in the currency provided in Section 2.03.  All other payments herein shall be payable in
the currency specified with respect to such payment or, if the currency is not
specified, in Dollars.  Except as
otherwise expressly provided herein, (x) all payments by the Borrower in
Dollars hereunder shall be made to the Administrative Agent, for the account of
the Lenders to which such payment is owed, at the Administrative Agent’s Office
in Dollars and in Same Day Funds not later than 3:00 p.m. (New York time)
on the date specified herein and (y) all payments by the Borrower in
Alternative Currency hereunder shall be made to the Administrative Agent’s
Office for payments in such Alternative Currency and in Same Day Funds not
later than 3:00 p.m. London time on the date specified herein.  The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share 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 3:00 p.m. New York time or London time, as applicable shall be
deemed received on the immediately succeeding Business Day and any applicable
interest or fee shall continue to accrue. 
Subject to the definition of “Interest Period,” if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


(b)           (i)  Funding by
Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed time of any Borrowing that
such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.02
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding
the date of payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Administrative Agent in


 


68

















 


connection with the foregoing and (B) in
the case of a payment to be made by the Borrower, the interest rate applicable
to Base Rate Loans.  If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


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


 


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


 


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


 


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


 


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


 


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(f)            Insufficient Funds.  If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, L/C Borrowings, interest and fees then due hereunder, such funds
shall be applied (i) first, toward payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and L/C Borrowings then due to such parties.


 


2.12        Sharing
of Payments by Lenders.


 


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


 


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


 


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


 


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


 


2.13        Evidence
of Debt.


 


(a)           The Credit Extensions made
by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and 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.


 


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


 


(b)           In addition to the accounts
and records referred to in subsection (a) above, 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 Swingline 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)           Each Lender having sold a
participation in any of its Obligations, acting solely for this purpose as
agent for the Borrower, shall maintain a register for the recordation of the
names and addresses of such Participants (and each change thereto, whether by
assignment or otherwise) and the rights, interest or obligation of such
Participants in any Obligation, in any Commitment and in any right to receive
any payments hereunder.


 


2.14        CAM
Exchange.


 


(a)           On the Revolving CAM
Exchange Date, (i) the Revolving Commitments shall automatically and
without further act be terminated in accordance with Section 9.02; (ii) each
Dollar Revolving Lender shall fund its participation in any outstanding
Swingline Loans in accordance with Section 2.04(b); (iii) each
Dollar Revolving Lender shall fund its L/C Advance in any outstanding L/C
Borrowings; and (iv) the Revolving Lenders shall purchase at par (and in
the currencies in which such Designated Revolving Obligations are denominated)
interests in the Designated Revolving Obligations under each Revolving Facility
(and shall make payments to the Administrative Agent for reallocation to other
Revolving Lenders to the extent necessary to give effect to such purchase) and
shall assume the obligations to reimburse the L/C Issuer for L/C Borrowings under
the Dollar Revolving Facility such that, after giving effect to such payments,
each Revolving Lender shall own an interest equal to such Revolving Lender’s
Revolving CAM Percentage in the Designated Revolving Obligations under each
Revolving Facility and shall have the obligation to reimburse the L/C Issuer
for its Revolving CAM Percentage of each L/C Borrowing under the Dollar
Revolving Facility.  Each Revolving
Lender and each Person acquiring a participation from any Revolving Lender as
contemplated by Section 11.06 hereby consents and agrees to the
Revolving CAM Exchange.  Each of the
Revolving Lenders agrees from time to time to execute and deliver to the
Administrative Agent all such promissory notes and other instruments and
documents as the Administrative Agent shall reasonably request to


 


71

















 


evidence and confirm the respective interests
and obligations of the Revolving Lenders after giving effect to the Revolving
CAM Exchange, and each Revolving Lender agrees to surrender any promissory
notes originally received by it in connection with its Revolving Loans under
this Credit Agreement to the Administrative Agent against delivery of any
promissory notes so executed and delivered; provided that the failure of
any Revolving Lender to deliver or accept any such promissory note, instrument
or document shall not affect the validity or effectiveness of the Revolving CAM
Exchange.


 


(b)           As a result of the Revolving
CAM Exchange, from and after the Revolving CAM Exchange Date, each payment
received by the Administrative Agent pursuant to any Credit Document in respect
of the Designated Revolving Obligations shall be distributed to the Revolving
Lenders on a pro rata basis in accordance with their respective Revolving CAM
Percentages.


 


(c)           In the event that on or
after the Revolving CAM Exchange, an L/C Borrowing is made under any Letter of
Credit under the Dollar Revolving Facility that is not reimbursed by the
Borrower, each Revolving Lender shall provide its L/C Advance to the L/C Issuer
for its Revolving CAM Percentage of such L/C Borrowing.


 


ARTICLE
III


 


TAXES,
YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments Free of Taxes.  Except as otherwise required by law (as
determined in the good faith discretion of the applicable withholding agent),
any and all payments by or on account of any obligation of the Credit Parties
hereunder or under any other Credit Document shall be made free and clear of
and without reduction or withholding for any Indemnified or Other Taxes, provided
that if the applicable withholding agent shall be required by applicable law
(as determined in the good faith discretion of the applicable withholding
agent) to deduct or withhold any Indemnified Taxes (including any Other Taxes)
from such payments, then (i) the sum payable by the applicable Credit
Party shall be increased as necessary so that after making all required
deductions or withholdings (including deductions or withholdings applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) the
applicable withholding agent shall make such deductions or withholdings and (iii) the
applicable withholding agent shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.


 


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


 


(c)           Indemnification by the
Borrower.  Without
duplication of any amounts payable under Section 3.01(a), the
Borrower shall indemnify the Administrative Agent, each Lender and the L/C
Issuer, within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on


 


72

















 


or attributable to amounts payable under this
Section) payable by the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with
a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.  Upon the reasonable
request of any Credit Party, the Lenders, each L/C Issuer and the
Administrative Agent agree to use their reasonable efforts to cooperate with
such Credit Party (at such Credit Party’s direction and expense) in contesting
the imposition of, or claiming a refund of, any Indemnified Taxes or Other
Taxes paid by such Credit Party, whether directly to a Governmental Authority
or pursuant to this Section, that such Credit Party reasonably believes were
not correctly or legally asserted by the relevant Governmental Authority unless
the Lender, L/C Issuer or the Administrative Agent, as the case may be, determines
in good faith that pursuing such a contest or refund would be materially
disadvantageous to it.


 


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


 


(e)           Status of Lenders.  Any 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
Credit Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation prescribed by
applicable law or as reasonably requested by the Borrower or the Administrative
Agent as will permit such payments to be made without withholding or at a
reduced rate of withholding.  In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.


 


Without
limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States, any Foreign Lender to the
extent it may lawfully do so shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Credit Agreement, on or prior to the date on which any such
form or certification expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent form or certification
previously delivered by it (and from time to time thereafter upon the request
of the Borrower or the Administrative Agent), whichever of the following is
applicable:


 


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


 


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(ii)   duly completed copies of IRS
Form W-8ECI,


 


(iii)  in the case of
a Foreign Lender claiming the benefits of the exemption for portfolio interest
under Section 881(c) of the Internal Revenue Code, (x) a
certificate, in substantially the form of Exhibit 3.01(e) (a “Non-Bank
Certificate”), to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the
Internal Revenue Code and that interest payments being received are not
effectively connected with the Foreign Lender’s conduct of a U.S. trade or
business and (y) duly completed copies of IRS Form W-8BEN,


 


(iv)  in the case of a Foreign
Lender that does not act or ceases to act for its own account with respect to
any portion of any sums paid or payable to such Lender under any of the Credit
Documents (for example, in the case of a Foreign Lender that is a partnership
for U.S. federal income tax purposes for that is a participating Lender
granting a typical participation), duly completed copies of Internal Revenue Service
Form W-8IMY, together with the appropriate IRS Form W-8BEN, ECI or
IMY, W-9 and/or Non-Bank Certificate with respect to each beneficial owner
(provided that, if the Foreign Lender is a partnership, one or more of whose
beneficial owners is claiming the portfolio interest exception, the Foreign
Lender may provide the Non-Bank Certificate on behalf of such beneficial owners),
and any other certificate or statement of exemption required under the Internal
Revenue Code or the regulations thereunder, 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 and to establish that such remaining portion may
be received without deduction for, or at a reduced rate of, United States federal
withholding tax; or


 


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


 


Any
Lender or L/C Issuer that is a United States person under Section 7701(a)(30)
of the Internal Revenue Code, to the extent it may lawfully do so, shall
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Lender or L/C Issuer becomes a Lender or L/C Issuer, as applicable, under this
Credit Agreement, on or prior to the date on which any such form or certification
expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form or certification previously delivered by it (and
from time to time thereafter upon the request of the Borrower or the
Administrative Agent), duly completed copies of Internal Revenue Service Form W-9
(or any successor form) certifying that such Lender or L/C Issuer is entitled
to an exemption from U.S. backup withholding tax.


 


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(f)            Treatment of Certain Refunds.  If the Administrative Agent, any Lender or
the L/C Issuer determines, in its reasonable discretion, that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by any Credit Party or with respect to which a Credit Party has
paid additional amounts pursuant to this Section, it shall pay to the Borrower
an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Credit Party under this Section with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or
the L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of the Administrative
Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest (attributable to the period
of time that the Borrower had use of such funds) or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, such Lender
or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make
available its Tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.  Notwithstanding anything to the contrary, in
no event will any Lender or L/C Issuer be required to pay any amount to the
Borrower the payment of which would place such Lender or L/C Issuer in a less
favorable net after-tax position that such Lender or L/C Issuer would have been
in if the Indemnified Tax giving rise to such refund had never been imposed.


 


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 Adjusted Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Loans that are Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


3.03        Inability
to Determine Rates.


 


If the
Required Lenders determine that for any reason in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank Eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for


 


75

















 


determining the Adjusted Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the
Adjusted Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. 
Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. 
Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Loans that are Base Rate Loans in the amount specified therein.


 


3.04        Increased
Cost; Capital Adequacy.


 


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


 


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


 


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


 


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


 


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


 


(b)           Capital Requirements.  If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or


 


76

















 


such Lender’s or the L/C Issuer’s holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Credit Agreement, the Commitments of such Lender or the
Loans made by, or participations in Letters of Credit held by, such Lender, or
the Letters of Credit issued by the L/C Issuer, to a level below that which
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law, then from time to time
the Borrower will pay to such Lender or the L/C Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.


 


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


 


(d)           Delay in Requests.  Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s or the L/C
Issuer’s right to demand such compensation, provided that the Borrower
shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine (9) months prior to the date that such
Lender or the L/C Issuer, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).


 


3.05        Compensation
for Losses.


 


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


 


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


 


77

















 


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


 


including any reasonable loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain such Loan or from fees
payable to terminate the deposits from which such funds were obtained.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender (with
a copy to the Administrative Agent), or by the Administrative Agent on behalf
of a Lender, shall be conclusive absent manifest error.


 


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


 


3.06        Mitigation
Obligations; Replacement of Lenders.


 


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


 


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


 


(c)           Limitation on Additional
Amounts, Etc. 
Notwithstanding anything to the contrary contained in this Article III
of this Credit Agreement, unless a Lender gives notice to the Borrower that it
is obligated to pay an amount under this Article within nine (9) months
after the later of (i) the date the Lender incurs the respective increased
costs, loss, expense or liability, reduction in amounts received or receivable
or reduction in return on capital or (ii) the date such Lender has actual
knowledge of its incurrence of the respective increased costs, loss, expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to this Article III, to the extent
of the costs, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital that are incurred or suffered on
or after the date


 


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which occurs nine (9) months prior to
such Lender giving notice to the Borrower that it is obligated to pay the respective
amounts pursuant to this Article III.


 


3.07        Survival
Losses.


 


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


 


3.08        Additional
Reserve Costs.


 


(a)           In the case of any Lender
making an Approved Currency Revolving Loan from a Lending Office in the United
Kingdom or a Participating Member State, such Lender shall be
entitled to require the Borrower to pay, contemporaneously with each payment of
interest on each of such Loans, additional interest on such Loan at a rate per
annum equal to the Mandatory Cost Rate calculated in accordance with the
formula and in the manner set forth in Schedule 3.08 hereto.


 


(b)           For so long as any Lender is
required to comply with reserve assets, liquidity, cash margin or other
requirements of any monetary or other authority (including any such requirement
imposed by the European Central Bank, the European System of Central Banks or
the Bank of Canada, but excluding requirements reflected in the Statutory
Reserves or the Mandatory Cost Rate) in respect of any of such Lender’s
Eurodollar Rate Loans, such Lender shall be entitled to require the Borrower to
pay, contemporaneously with each payment of interest on each of such Lender’s
Loans subject to such requirements, additional interest on such Loan at a rate
per annum specified by such Lender to be the cost to such Lender of complying
with such requirements in relation to such Loan.


 


(c)           Any additional interest owed
pursuant to paragraph (a) or (b) above shall be determined in
reasonable detail by the applicable Lender, which determination shall be conclusive
absent manifest error, and notified to the Borrower (with a copy to the
Administrative Agent) at least five Business Days before each
date on which interest is payable for the applicable Loan, and such additional
interest so notified to the Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which interest
is payable for such Loan.


 


ARTICLE
IV


 


GUARANTY


 


4.01        The
Guaranty.


 


(a)           Each of the Guarantors
hereby jointly and severally guarantees to the Administrative Agent and each of
the holders of the Obligations, as hereinafter provided, as primary obligor and
not as surety, the prompt payment of the Obligations (the “Guaranteed
Obligations”) in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if
any of the Guaranteed Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory


 


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cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.


 


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


 


4.02        Obligations
Unconditional.


 


The
obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or other
documents relating to the Obligations, or any substitution, compromise,
release, impairment or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable Law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of
the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances.  Each Guarantor agrees
that such Guarantor shall have no right of subrogation, indemnity, reimbursement
or contribution against the Borrower or any other Guarantor for amounts paid
under this Article IV until such time as the Obligations have been
irrevocably paid in full and the commitments relating thereto have expired or
been terminated.  Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute
and unconditional as described above:


 


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


 


(b)           any of the acts mentioned in any of the provisions of
any of the Credit Documents, or other documents relating to the Guaranteed Obligations
or any other agreement or instrument referred to therein shall be done or omitted;


 


(c)           the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Credit Documents or
other documents relating to the Guaranteed Obligations, or any other agreement
or instrument referred to therein shall be waived or any other guarantee of any
of the Guaranteed Obligations or any security therefor shall be released,
impaired or exchanged in whole or in part or otherwise dealt with;


 


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


 


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


 


With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest, notice of acceptance of the
guaranty given hereby and of extensions of credit that may constitute
obligations guaranteed hereby, notices of amendments, waivers and supplements
to the Credit Documents and other documents relating to the Guaranteed
Obligations, or the compromise, release or exchange of collateral or security,
and all notices whatsoever, and any requirement that the Administrative Agent
or any holder of the Guaranteed Obligations exhaust any right, power or remedy
or proceed against any Person under any of the Credit Documents or any other
documents relating to the Guaranteed Obligations or any other agreement or
instrument referred to therein, or against any other Person under any other
guarantee of, or security for, any of the Obligations.


 


4.03        Reinstatement.


 


Neither
the Guarantors’ obligations hereunder nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower, by reason of the Borrower’s bankruptcy or insolvency
or by reason of the invalidity or unenforceability of all or any portion of the
Guaranteed Obligations.  The obligations
of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings pursuant to any Debtor Relief Law or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each
holder of Guaranteed Obligations on demand for all reasonable costs and
expenses (including all reasonable fees, expenses and disbursements of any law
firm or other counsel) incurred by the Administrative Agent or such holder of
Guaranteed Obligations in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any Debtor Relief Law.


 


4.04        Certain
Waivers.


 


Each
Guarantor acknowledges and agrees that (a) the guaranty given hereby may
be enforced without the necessity of resorting to or otherwise exhausting
remedies in respect of any other security or collateral interests, and without
the necessity at any time of having to take recourse against the Borrower
hereunder or against any collateral securing the Guaranteed Obligations or otherwise,
(b) it will not assert any right to require the action first be taken
against the Borrower or any other Person (including any co-guarantor) or
pursuit of any other remedy or enforcement of any other right and (c) nothing
contained herein shall prevent or limit action being


 


81

















 


taken against the Borrower hereunder, under the other
Credit Documents or the other documents and agreements relating to the
Guaranteed Obligations or from foreclosing on any security or collateral
interests relating hereto or thereto, or from exercising any other rights or
remedies available in respect thereof, if neither the Borrower nor the
Guarantors shall timely perform their obligations, and the exercise of any such
rights and completion of any such foreclosure proceedings shall not constitute
a discharge of the Guarantors’ obligations hereunder unless as a result
thereof, the Guaranteed Obligations shall have been indefeasibly paid in full
and the commitments relating thereto shall have expired or been terminated, it
being the purpose and intent that the Guarantors’ obligations hereunder be
absolute, irrevocable, independent and unconditional under all circumstances.


 


4.05        Remedies.


 


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


 


4.06        Rights
of Contribution.


 


The
Guarantors hereby agree as among themselves that, in connection with payments
made hereunder, each Guarantor shall have a right of contribution from each
other Guarantor in accordance with applicable Law.  Such contribution rights shall be subordinate
and subject in right of payment to the Guaranteed Obligations until such time
as the Guaranteed Obligations have been irrevocably paid in full and the
commitments relating thereto shall have expired or been terminated, and none of
the Guarantors shall exercise any such contribution rights until the Guaranteed
Obligations have been irrevocably paid in full and the commitments relating
thereto shall have expired or been terminated.


 


4.07        Guaranty
of Payment; Continuing Guaranty.


 


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


 


4.08        Joint
and Several Liability of the Borrower.


 


The
Borrower shall be jointly and severally liable for all Obligations of any
Foreign Subsidiary that becomes an additional borrower hereunder in accordance
with Section 1.08.


 


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ARTICLE
V


 


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS


 


5.01        Conditions
to Closing Date.


 


The
effectiveness of this Credit Agreement is subject to satisfaction of the
following conditions precedent:


 


(a)           Executed Credit Agreement. 
The Administrative Agent’s receipt of counterparts of this Credit
Agreement dated as of the Closing Date, duly executed by a Responsible Officer
of the Borrower and by each Lender party thereto, and in form and substance
satisfactory to the Administrative Agent, the Lead Arrangers and each of the
Lenders.


 


(b)           [Reserved.]


 


(c)           Officer Certificates.  The following
shall be true as of the Closing Date, and the Administrative Agent shall have
received a certificate or certificates of a Responsible Officer of the
Borrower, dated as of the Closing Date, certifying each of the following:


 


(i)    Consents.  No consents, licenses or approvals are
required in connection with the execution, delivery and performance by any
Credit Party of the Credit Documents to which it is a party, other than as are
in full force and effect and, to the extent requested by the Administrative
Agent, are attached thereto;


 


(ii)   Material Adverse Effect.  There has been no event or circumstance since
December 31, 2007 (other than an event or condition set forth in Schedule
5.01(c)(ii) hereto (each such event or condition, so listed on such
Schedule, a “Scheduled Matter”), except for any development or change in
any such Scheduled Matter after June 19, 2008 that would, in and of
itself, have or could be reasonably expected to have a Material Adverse
Effect), that has had or would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect;


 


(iii)  Material
Litigation.  There shall
be no action, suit, investigation or proceeding pending in any court or before
any arbitrator or Governmental Authority that would reasonably be expected to
have a Material Adverse Effect; and


 


(iv)  Representations and
Warranties; No Default.  The
conditions set forth in Sections 5.01(d) and (e) have
been satisfied as of the Closing Date.


 


(d)           The representations and warranties set forth in Sections
6.06, 6.12, 6.13, 6.14 and 6.15 shall be true
and correct as of the Closing Date.


 


(e)           No Default or Event of Default shall have occurred and
be continuing or would result from the occurrence of the Closing Date.


 


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Without limiting the generality of the provisions of Section 10.04,
for purposes of determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Credit Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


5.02        Conditions
to the Funding Date.


 


The
obligation of each Lender and the L/C Issuer to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:


 


(a)           Execution of Credit Documents and Joinders. 
The Administrative Agent shall have received counterparts of (i) a
Joinder Agreement to the Credit Agreement duly executed by a Responsible
Officer of each Guarantor, (ii) the Security Agreement, duly executed by a
Responsible Officer of the Borrower and each Guarantor, (iii) the Pledge
Agreement, duly executed by a Responsible Officer of the Borrower and each
Guarantor and (iv) Notes, to the extent requested by a Lender by written
notice delivered to the Borrower at least five (5) Business Days prior to
the Funding Date, duly executed by a Responsible Officer of the Borrower.


 


(b)           Spin-Off.  The
Administrative Agent shall be reasonably satisfied that the Spin-Off will be
consummated substantially simultaneously with, or within five (5) Business
Days after, the initial Borrowing hereunder. 
The Administrative Agent shall be satisfied that all governmental,
shareholder and third party consents and approvals necessary in connection with
the Spin-Off shall have been obtained and all applicable waiting periods shall
have expired without any continuing action being taken by any authority that
would restrain, prevent or impose any material adverse conditions on the
Borrower and its Subsidiaries or the Transactions, and no Law or regulation
shall be applicable which in the reasonable judgment of the Administrative
Agent would have such effect, in each case to the extent the foregoing could
either reasonably be expected to prevent the consummation of the Spin-Off as
contemplated by the Separation Agreement or could reasonably be expected to result
in a Material Adverse Effect.


 


(c)           Personal Property Collateral. 
The Collateral Agent’s receipt of the following:


 


(i)    Lien Priority.  Evidence, including UCC, tax and judgment
lien searches from the jurisdiction of formation and jurisdiction of the chief
executive office of each Credit Party and intellectual property searches, that
none of the Collateral is subject to any Liens (in each case other than
Permitted Liens);


 


(ii)   UCC Financing Statements.  Such UCC financing statements as are
necessary or appropriate, in the Collateral Agent’s discretion, to perfect the
security interests in the Collateral;


 


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(iii)                               Intellectual Property. 
Such patent, trademark and copyright security agreements as are
necessary or appropriate, in the Collateral Agent’s discretion, to perfect the
security interests in the Credit Parties’ material IP Rights;


 


(iv)                              Capital Stock. 
Original certificates evidencing the Capital Stock pledged pursuant to
the Collateral Documents and required to be delivered thereunder (to the extent
such Capital Stock is certificated), together with undated stock transfer
powers executed in blank (provided that with respect to the stock of any
Subsidiary of the Borrower, the Administrative Agent may, in its sole discretion,
provide a reasonable amount of time after the initial funding for the Borrower
to deliver such original certificates); and


 


(v)                                 Promissory Notes. 
Original promissory notes to the extent required by the Security
Agreement, if any, evidencing intercompany loans or advances owing to any
Credit Party by any Subsidiary of the Borrower, together with undated allonges
executed in blank (provided that the Administrative Agent may, in its
sole discretion, provide a reasonable amount of time after the initial funding
for the Borrower to deliver such original promissory notes).


 


(d)                                 Evidence of Insurance. 
The Collateral Agent’s receipt of copies of binders with respect to all
property and liability insurance required to be maintained pursuant to the
Credit Documents.


 


(e)                                  Opinions of Counsel. 
The Administrative Agent’s receipt of a customary duly executed opinion
of Wachtell, Lipton Rosen & Katz and of appropriate local counsel to
the Credit Parties, dated as of the Funding Date, in each case, reasonably
satisfactory to the Administrative Agent.


 


(f)                                    Organization Documents, Etc. 
The Administrative Agent’s receipt of a duly executed certificate of a
Responsible Officer of each Credit Party, attaching each of the following
documents and certifying that each is true, correct and complete and in full
force and effect as of the Funding Date:


 


(i)                                     Charter Documents. 
Copies of its articles or certificate of organization or formation,
certified to be true, correct and complete as of a recent date by the
appropriate Governmental Authority of the jurisdiction of its organization or
formation;


 


(ii)                                  Bylaws.  Copies of its
bylaws, operating agreement or partnership agreement;


 


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


 


(iv)                              Incumbency.  Incumbency certificates
identifying the Responsible Officers of such Credit Party that are authorized
to execute Credit Documents and to act on such Credit Party’s behalf in connection
with the Credit Documents; and


 


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(v)                                 Good Standing Certificates. 
Certificates of good standing or the equivalent from its jurisdiction of
organization or formation, in each case certified as of a recent date by the
appropriate Governmental Authority.


 


(g)                                 Officer Certificates. 
The following shall be true as of the Funding Date, and the
Administrative Agent shall have received a customary certificate or certificates
of a Responsible Officer of the Borrower, dated as of the Funding Date
certifying each of the following:


 


(i)                                     Material Adverse Effect. 
There has been no event or circumstance since December 31, 2007
(other than a Scheduled Matter, except for any development or change in any
such Scheduled Matter after June 19, 2008 that would, in and of itself,
have or could be reasonably expected to have a Material Adverse Effect), that
has had or would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect; and


 


(ii)                                  Material Litigation. 
There shall be no action, suit, investigation or proceeding pending in
any court or before any arbitrator or Governmental Authority that would
reasonably be expected to have a Material Adverse Effect.


 


(h)                                 Pro Forma Financial Statements. 
The Lenders shall have received the balance sheet as of March 31,
2008 and, if the Funding Date is on or after August 31, 2008, June 30,
2008, and statements of income and cash flows for the period ended March 31,
2008 and, if the Funding Date is on or after August 31, 2008, June 30,
2008, in each case as to the Borrower and its Subsidiaries giving effect to the
Transactions on a pro forma basis.


 


(i)                                     Financial Statements. 
Copies of the financial statements referred to in Section 6.05.


 


(j)                                     Separation Agreement. 
The Administrative Agent shall have received a final, execution version
of the Separation Agreement, which shall not have any changes since the draft
of July 25, 2008 provided to the Lead Arrangers that are materially adverse
to the Lenders, and there shall have been no changes to the structure or terms
of the Spin-Off and related transactions pursuant to Section 12.01 of the
Separation Agreement that are materially adverse to the Lenders, in each case,
unless reasonably satisfactory to the Lead Arrangers.


 


(k)                                  Solvency.  The
Administrative Agent shall have received a customary certificate, dated as of
the Funding Date, certified by the chief financial officer of the Borrower,
stating that the Borrower and its Subsidiaries, on a consolidated basis after
giving effect to the Transactions, are Solvent.


 


(l)                                     Fees and Expenses. 
All fees and expenses (including, unless waived by the Administrative
Agent, all reasonable fees, expenses and disbursements of any law firm or other
counsel (including any local counsel)) invoiced to the Borrower at least two
Business Days prior to the Funding Date and required to be paid on or before
the Funding Date shall have been paid.


 


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(m)                               Senior Notes. 
The Borrower shall have consummated the issuance of the Senior Notes.


 


(n)                                 Indebtedness. 
After giving effect to the Funding Date, the Borrower and its Subsidiaries
shall have no Indebtedness other than with respect to the Term Loans, the
Existing Letters of Credit, the Senior Notes, Indebtedness permitted pursuant
to Section 8.03(b) and other Indebtedness incurred in the ordinary
course of business since the Closing Date and otherwise permitted hereunder and
other Indebtedness as may be reasonably acceptable to the Lead Arrangers.


 


(o)                                 Schedule.  The Borrower
shall have delivered to the Administrative Agent Schedule 7.08.


 


(p)                                 Funding Date. 
The Funding Date shall have occurred on or prior to September 30,
2008.


 


5.03                        Conditions to All Credit
Extensions.


 


The
obligation of each Lender and the L/C Issuer to honor any Request for Credit
Extension is subject to the following conditions precedent:


 


(a)                                  The representations and warranties of the
Borrower and each other Credit Party contained in Article VI shall
be true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date (provided that
representations and warranties that are qualified by materiality shall be true
and correct in all respects).


 


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


 


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


 


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


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


The Credit Parties represent and warrant to the
Administrative Agent and the Lenders that (it being understood and agreed that
on the Closing Date only, the representations and warranties set forth in this Article VI
shall only be made to the extent set forth in Section 5.01(d)):


 


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6.01                        Existence, Qualification
and Power.


 


Each
Credit Party (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or formation, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) execute, deliver and perform
its obligations under the Credit Documents to which it is a party and (ii) except
to the extent it would not reasonably be expected to have a Material Adverse Effect,
own its assets and carry on its business, and (c) except to the extent it
would not reasonably be expected to have a Material Adverse Effect, is duly
qualified and is licensed and in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license.


 


6.02                        Authorization; No
Contravention.


 


The
execution, delivery and performance by each Credit Party of each Credit
Document to which it is party have been duly authorized by all necessary
corporate or other organizational action and do not (a) contravene the
terms of such Credit Party’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien (other
than Permitted Liens) under, (i) any Contractual Obligation to which such
Credit Party is party or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Credit Party or its
Property is subject; or (c) violate any Law applicable to such Credit
Party and the relevant Credit Documents, except, in the case of clause (b) or
(c) of this Section 6.02 only, as would not reasonably
be expected to have a Material Adverse Effect.


 


6.03                        Governmental
Authorization; Other Consents.


 


No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or enforcement
against, any Credit Party of this Credit Agreement or any other Credit Document
(other than (a) as have already been obtained and are in full force and
effect, (b) filings to perfect security interests granted pursuant to the
Credit Documents and (c) approvals, consents, exemptions, authorizations,
or other actions, notices or filings the failure to procure which would not
reasonably be expected to have a Material Adverse Effect).


 


6.04                        Binding Effect.


 


Each
Credit Document has been duly executed and delivered by each Credit Party that
is party hereto or thereto.  Each Credit
Document constitutes legal, valid and binding obligations of such Credit Party,
enforceable against such Credit Party in accordance with its terms, except to
the extent the enforceability thereof may be limited by applicable Debtor
Relief Laws affecting creditors’ rights generally and by equitable principles
of law (regardless of whether enforcement is sought in equity or at law) and
implied covenants of good faith and fair dealing.


 


6.05                        Financial Statements.


 


The
audited combined balance sheets of the Borrower and its Subsidiaries as of December 31,
2007 and December 31, 2006 and the unaudited combined balance sheets as of
March 31, 


 


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2008 and March 31, 2007 and, if the Funding Date
is on or after August 31, 2008, June 30, 2008 and June 30, 2007,
and the related combined statements of income or operations, or shareholders’
equity (or invested equity) and cash flows for the years ending December 31,
2007, December 31, 2006 and December 31, 2005 and the fiscal quarters
ending March 31, 2008 and (solely with respect to the statements of income
or operations and cash flows) March 31, 2007 and, if the Funding Date is
on or after August 31, 2008, for the fiscal quarters ended June 30,
2008 and (solely with respect to the statements of income or operations and
cash flows) June 30, 2007, including the notes thereto, (i) were
prepared in accordance with GAAP consistently applied throughout the periods
covered thereby, except as otherwise expressly noted therein and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and its results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein.


 


The
unaudited pro forma condensed combined balance sheet of the Borrower and its Subsidiaries
as at March 31, 2008, and, if the Funding Date is on or after August 31,
2008, June 30, 2008, and the related unaudited pro forma condensed
combined statements of operations of the Borrower and its Subsidiaries for the
three or, if the Funding Date is on or after August 31, 2008, six, months
then ended and for the year ended December 31, 2007, certified by the
chief financial officer or treasurer of the Borrower, copies of which have been
furnished to each Lender, fairly present the combined pro forma financial
condition of the Borrower and its Subsidiaries as at such date and the combined
pro forma results of operations of the Borrower and its Subsidiaries for the
periods ended on such dates, in each case giving effect to the Transactions,
all in accordance with Regulation S-X under the Securities Laws, as amended and
the Borrower believes that the assumptions underlying such unaudited pro forma
combined financial statements are reasonable.


 


6.06                        No Material Adverse Effect.


 


Since December 31,
2007, there has been no event or circumstance, either individually or in the
aggregate, that has had or would reasonably be expected to have a Material
Adverse Effect (other than any Scheduled Matter, except for any development or
change in any such Scheduled Matter after June 19, 2008 that would, in and
of itself, have or could be reasonably expected to have a Material Adverse
Effect).


 


6.07                        Litigation.


 


There
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against any member of the Consolidated Group 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.


 


6.08                        No Default.


 


No
Default or Event of Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Credit Agreement or
any other Credit Document.


 


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6.09                        Ownership of Property;
Liens.


 


Each
of the Borrower and its Subsidiaries has good and valid title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in or right to use, all its other material property,
except as would not reasonably be expected to have a Material Adverse Effect,
and the property of the Consolidated Group is subject to no Liens, other than
Permitted Liens.


 


6.10                        Taxes.


 


Except
as would not reasonably be expected, individually or in the aggregate to have a
Material Adverse Effect:  (a) the
Borrower and each of its Subsidiaries (i) has timely filed (or has had
filed on its behalf) all Tax returns required to be filed and (ii) has
paid prior to delinquency all Taxes levied or imposed upon it or its
properties, income or assets otherwise due and payable (including in its
capacity as a withholding agent), except for Taxes that are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided, in accordance with GAAP, if such contest suspends
enforcement or collection of the claim in question; (b) neither the
Borrower nor any of its Subsidiaries is aware of any proposed or pending tax
assessments, deficiencies or audits; and (c) neither the Borrower nor any
of its Subsidiaries has “participated” in a “listed transaction” within the
meaning of Treasury Regulation Section 1.6011-4.


 


6.11                        ERISA Compliance.


 


(a)                                  Each Pension Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently pending before the IRS with respect thereto and, to
the knowledge of the Borrower, nothing has occurred that would prevent, or
cause the loss of, such qualification except in such instances in which the
failure to comply therewith either individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.  The Borrower and each ERISA Affiliate have
made all required contributions to each Pension Plan subject to Section 412
of the Internal Revenue Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Pension Plan except in
such instances in which the failure to comply therewith either individually or
in the aggregate would 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 would be reasonably be
expected to have a Material Adverse Effect. 
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or would
reasonably be expected to result in a Material Adverse Effect.


 


(c)                                  (i) No ERISA Event has occurred or
is reasonably expected to occur; (ii) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred that, 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 


 


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Plan; and (iii) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that would reasonably be expected to be subject to
Sections 4069 or 4212(c) of ERISA which in the case of clause (i) through
(iii) above, would reasonably be expected to have a Material Adverse
Effect.


 


6.12                        Subsidiaries.


 


After
giving effect to any modifications or updates pursuant to the last sentence of
this Section 6.12, set forth on Schedule 6.12 is a list of
all Subsidiaries of the Borrower immediately after giving effect to the
consummation of the Spin-Off, together with the jurisdiction of organization,
classes of Capital Stock and ownership and ownership percentages of each such
Subsidiary as of such date.  After giving
effect to any modifications or updates pursuant to the last sentence of this Section 6.12,
Schedule 6.12 identifies the Subsidiaries that shall be parties to the
Pledge Agreement and Security Agreement after giving effect to the consummation
of the Spin-Off.  The outstanding Capital
Stock has been validly issued, is owned free of Liens (other than Permitted
Liens), and with respect to any outstanding shares of Capital Stock of a corporation,
such shares have been validly issued and are fully paid and
non-assessable.  The outstanding shares
of Capital Stock are not subject to any buy-sell, voting trust or other
shareholder agreement except as identified on Schedule 6.12.  The Borrower may, on or prior to the Funding
Date, provide information from time to time to modify and update the
information set forth on Schedule 6.12 in a manner reasonably
satisfactory to the Administrative Agent.


 


6.13                        Margin Regulations;
Investment Company Act.


 


(a)                                  The Credit Parties are not engaged and
will not engage, principally or as one of their important activities, in the
business of purchasing or carrying “margin stock” (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing
or carrying margin stock.


 


(b)                                 None of the Credit Parties or any
Subsidiary is or is required to be registered as an “investment company” under
the Investment Company Act of 1940.


 


6.14                        Disclosure.


 


No
written report, financial statement, certificate or other information (taken as
a whole) furnished by or on behalf of any Credit Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Credit Agreement or delivered hereunder or under any
other Credit Document (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each
case as of the date such information is provided and as of the Closing Date and
the Funding Date; provided that, with respect to projected financial
information and estimates, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time.


 


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6.15                        Compliance with Laws.


 


Each
member of the Consolidated Group is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions, settlements or
other agreements with any Governmental Authority and decrees applicable to it
or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.


 


6.16                        Solvency.


 


As of
the Funding Date, the Borrower and its Subsidiaries, on a consolidated basis,
are, and after giving effect to the Transactions will be, Solvent.


 


6.17                        Intellectual Property;
Licenses, Etc.


 


Except
as would not reasonably be expected to have a Material Adverse Effect, as of
the Funding Date, each member of the Consolidated Group owns, or possesses the
right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses 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.  As of the Funding
Date, no claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Credit Parties, threatened, that, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.


 


6.18                        Security Agreement.


 


The security
interest granted pursuant to the Security Agreement (i) will constitute a
valid and perfected security interest in the Collateral (as to which perfection
may be obtained by the filings or other actions described in clause (A), (B) or
(C) of this Section 6.18) in favor of the Collateral Agent,
for the benefit of the holders of the Obligations, as collateral security for
the Obligations, upon (A) the filing of all financing statements naming
each Grantor as “debtor” and the Collateral Agent as “secured party” and
describing the Collateral in the applicable filing offices, (B) delivery
of all Instruments, Chattel Paper and negotiable Documents to the Collateral
Agent and (C) completion of the filing, registration and recording of a
fully executed agreement in the form of the Security Agreement (or a supplement
thereto) and containing a description of all Collateral constituting
intellectual property in the United States Patent and Trademark Office within
the three month period (commencing as of the date hereof) or, in the case of
Collateral constituting intellectual property acquired after the date hereof,
thereafter pursuant to 35 USC § 261 and 15 USC § 1060 and the regulations
thereunder with respect to United States Patents and United States registered
Trademarks and in the United States Copyright Office within the one month
period (commencing as of the date hereof) or, in the case of Collateral constituting
intellectual property acquired after the date hereof, thereafter with respect
to United States registered Copyrights pursuant to 17 USC § 205 and the
regulations thereunder and otherwise as may be required pursuant to the laws of
any other necessary jurisdiction to the extent that a security interest may be
perfected by such filings, registrations and recordings, and (ii) are prior
to all 


 


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other Liens on the Collateral other than Liens
permitted by Section 8.01. 
Unless otherwise specified in this Credit Agreement, solely with respect
to this Section 6.18 capitalized terms used and not otherwise
defined in this Credit Agreement shall have the meanings provided in the Security
Agreement.


 


6.19                        Pledge Agreement.


 


The
Pledge Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the holders of the Obligations, a legal, valid and
enforceable security interest in the Collateral identified therein, except to
the extent the enforceability thereof may be limited by applicable Debtor
Relief Laws affecting creditors’ rights generally and by equitable principles
of law (regardless of whether enforcement is sought in equity or at law) and
the Pledge Agreement shall create a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Collateral, in each case prior and superior in right to any other Lien
other than Permitted Liens (i) with respect to any such Collateral that is
a “security” (as such term is defined in the UCC) and is evidenced by a
certificate, when such Collateral is delivered to the Collateral Agent with
duly executed stock powers with respect thereto, (ii) with respect to any
such Collateral that is a “security” (as such term is defined in the UCC) but
is not evidenced by a certificate, when UCC financing statements in appropriate
form are filed in the appropriate filing offices in the jurisdiction of
organization of the pledgor or when “control” (as such term is defined in the
UCC) is established by the Collateral Agent over such interests in accordance
with the provision of Section 8-106 of the UCC, or any successor provision,
and (iii) with respect to any such Collateral that is not a “security” (as
such term is defined in the UCC) (to the extent perfection of a Lien in such
Collateral can be obtained by filing UCC financing statements), when UCC
financing statements in appropriate form are filed in the appropriate filing
offices in the jurisdiction of organization of the pledgor.


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


Until the Loan Obligations shall have been paid in full
or otherwise satisfied, and the Commitments hereunder shall have expired or
been terminated, the Borrower will, and will cause each of its Subsidiaries to:


 


7.01                        Financial Statements.


 


Deliver
to the Administrative Agent and each Lender:


 


(a)                                  as soon as available, but in any event
within ten (10) days of the date the Borrower is required to file its Form 10-K
with the SEC and in any event not later than ninety (90) days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
as at the end of such fiscal year, and the related consolidated statements of
income or operations, invested 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,
audited and accompanied by (1) a report and opinion of a Registered Public
Accounting Firm of nationally recognized 


 


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standing, which report
and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception
as to the scope of such audit or other material qualification or exception and (2) if
required by Section 404 of Sarbanes-Oxley, an attestation report of such
Registered Public Accounting Firm as to the Borrower’s internal controls
pursuant to Section 404 of Sarbanes-Oxley; and


 


(b)                                 as soon as available, but in any event
within ten (10) days of the date the Borrower is required to file its Form 10-Q
with the SEC and in any event not later than forty-five (45) days (or, solely
in the case of the fiscal quarter of the Borrower ending June 30, 2008, 61
days) after the end of each of the first three (3) fiscal quarters of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
the Consolidated Group as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, invested equity and cash flows
for such fiscal quarter and for the portion of the Borrower’s fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Borrower as fairly presenting the financial condition,
results of operations, invested equity and cash flows of the Consolidated Group
in accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes; provided that, with respect to the fiscal
quarter ended June 30, 2008, such financial statements may be presented on
a basis consistent with the historical financial statements referred to in the
first paragraph of Section 6.05.


 


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


 


7.02                        Certificates; Other
Information.


 


Deliver
to the Administrative Agent and each Lender:


 


(a)                                  within five (5) Business Days
following the delivery of the financial statements referred to in Section 7.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default with
respect to financial covenants or, if any such Default or Event of Default
shall exist, stating the nature and status of such event (which may be limited
to the extent consistent with industry practice or the policy of the accounting
firm);


 


(b)                                 within five (5) Business Days
following each delivery of the financial statements referred to in Sections
7.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower (i) commencing with the fiscal
quarter ended September 30, 2008, setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with
the financial covenants 


 


94





















 


contained herein, (ii) certifying
that no Default or Event of Default exists as of the date thereof (or the
nature and extent thereof and proposed actions with respect thereto), (iii) setting
forth a list of each Subject Disposition and Involuntary Disposition effected
during the fiscal quarter or fiscal year, as the case may be, covered by such
financial statements, to the extent the Net Cash Proceeds received in such
Subject Disposition (or series of related Subject Dispositions) or Involuntary
Disposition (or series of related Involuntary Dispositions) exceed $5.0 million
or the Net Cash Proceeds received in all Subject Dispositions or Involuntary
Dispositions effected during such fiscal year exceeds $10.0 million (or the
elapsed portion of such fiscal year in the case of a Compliance Certificate
relating to a fiscal quarter), and whether the Borrower and its Subsidiaries
intend to reinvest the Net Cash Proceeds thereof or to use such Net Cash
Proceeds to prepay the Loans and (iv) a calculation of the Cumulative
Credit (in reasonable detail) as of the last day of the period covered by such
financial statements;


 


(c)                                  copies of all annual, regular, periodic
and special reports and registration statements that the Borrower may file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of
1934, and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;


 


(d)                                 promptly, such additional information
regarding the business, financial or corporate affairs of any Credit Party or
any Subsidiary of a Credit Party, or compliance with the terms of the Credit
Documents, as the Administrative Agent or any Lender (acting through the
Administrative Agent) may from time to time reasonably request;


 


(e)                                  promptly after the furnishing thereof,
copies of any material financial statement or report furnished to any holder of
material Indebtedness of any Credit Party or of any of its Subsidiaries
pursuant to the terms of any indenture, loan or credit or similar agreement and
not otherwise required to be furnished to the Lenders pursuant to Section 7.01
or any other clause of this Section 7.02;


 


(f)                                    as soon as available, but in any event no
more than sixty (60) days following the beginning of each fiscal year of the
Borrower, annual expense budgets of the Borrower and its Subsidiaries on a
consolidated basis, for such fiscal year of the Borrower; and


 


(g)                                 Within 15 Business Days after the date of
any Major Disposition, the Borrower shall notify the Administrative Agent
thereof and whether and to what extent the Net Cash Proceeds received therefrom
is intended to be used to reinvest or make prepayments pursuant to Section 2.06(b)(ii).


 


Documents
required to be delivered pursuant to Section 7.01 or 7.02
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower’s website on the internet at the
website address listed on Schedule 11.02; or (ii) on which such documents
are posted on the Borrower’s behalf on an internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent) including, to the extent the Lenders and the 


 


95

















 


Administrative Agent have access thereto and such documents
are available thereon, the EDGAR database and sec.gov; provided that the
Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents.  Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


The
Credit Parties hereby acknowledge that the Administrative Agent and/or the Lead
Arrangers will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Credit Parties hereunder
(collectively, the “Credit Party Materials”) by posting the Credit Party
Materials on IntraLinks or another similar electronic system (the “Platform”)
and that 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
Credit Parties or their securities) (each, a “Public Lender”).  The Credit Parties hereby agree that so long
as any Credit Party is the issuer of any outstanding debt or equity securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (1) all Credit Party 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), or otherwise indicated to the
Administrative Agent as being “PUBLIC”; (2) by marking or otherwise
indicating the Credit Party Materials “PUBLIC,” the Credit Parties shall be
deemed to have authorized the Administrative Agent, the Lead Arrangers and the
L/C Issuer and the Lenders to treat such Credit Party Materials as not
containing any material non-public information with respect to the Credit
Parties or their securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such
Credit Party Materials constitute Information, they shall be treated as set
forth in Section 11.07); (3) all Credit Party Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Investor”; and (4) the Administrative Agent and the
Lead Arrangers shall be entitled to treat any Credit Party Materials that are
not marked or otherwise indicated “PUBLIC” as being suitable only for posting
on a portion of the Platform not marked as “Public Investor.”


 


7.03                        Notification.


 


Promptly,
and in any event within two Business Days after any Responsible Officer of the
Borrower or any of its material Subsidiaries obtains knowledge thereof, notify
the Administrative Agent and each Lender of:


 


(a)                                  the occurrence of any Default or Event of
Default; and


 


(b)                                 the filing or commencement of any
litigation, investigation or proceeding affecting any Credit Party which would
reasonably be expected to have a Material Adverse Effect.


 


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7.04                        Preservation of Existence.


 


Except
as otherwise permitted hereunder, do all things necessary to preserve and keep
in full force and effect (x) its existence and (y) its rights,
franchises and authority, except (i) to the extent, in the case of clauses
(x) (with respect to any Subsidiary only and not the Borrower) and (y),
that the failure to do so would not have a Material Adverse Effect, (ii) with
respect to any Subsidiary only and not the Borrower, to the extent otherwise
permitted by Section 8.04 hereof, and (iii) for the
liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries,
to the extent such assets exceed estimated liabilities, are acquired by the
Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or
dissolution; provided that Subsidiaries that are Guarantors may not be
liquidated into Subsidiaries that are not Guarantors.


 


7.05                        Payment of Taxes and Other
Obligations.


 


(a)                                  Pay and discharge (i) all Taxes
imposed upon it, or upon its income or profits, or upon any of its properties,
before they become delinquent, (ii) all lawful claims (including claims
for labor, material and supplies) that, if unpaid, might give rise to a Lien
upon any of its properties, and (iii) except as prohibited hereunder, all
of its other Indebtedness as it becomes due, except in each case to the extent
that the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect; provided that no such Person shall be required
to pay any amount that is being contested in good faith by appropriate
proceedings and for which adequate reserves, determined in accordance with
GAAP, have been established, if such contest suspends enforcement or collection
of the claim in question.


 


(b)                                 Timely and correctly file all Tax returns
required to be filed by it, except for failures to file that would not
reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.


 


7.06                        Compliance with Law.


 


Comply
with the requirements of all applicable laws, rules, regulations and orders of
any Governmental Authority, a breach of which would result in a Material
Adverse Effect, except where contested in good faith by appropriate proceedings
diligently pursued.


 


7.07                        Maintenance of Property.


 


Maintain
and preserve its material properties and equipment in good repair, working order
and condition, normal wear and tear and casualty and condemnation excepted, and
make all repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto as may be necessary or proper, to the extent and in
the manner customary for similar businesses.


 


7.08                        Insurance.


 


Maintain
at all times in force and effect insurance in such amounts, covering such risks
and liabilities and with such deductibles or self-insurance retentions as
determined by the Borrower in its reasonable business judgment.  The Collateral Agent shall be named as loss
payee, additional insured and/or mortgagee, as its interests may appear, with
respect to any such insurance providing coverage in respect of any collateral
under the Collateral Documents, and the 


 


97

















 


Borrower shall request that each provider of any such
insurance to agree, by endorsement upon the policy or policies issued by it or
by independent instruments furnished to the Collateral Agent, that it will give
the Collateral Agent thirty (30) days’ prior written notice before any such
policy or policies shall be altered in any material respect or canceled, and
that no act or default of any member of the Consolidated Group or any other
Person shall affect the rights of the Collateral Agent or the Lenders under
such policy or policies.  The insurance
coverage for the Consolidated Group as of the Funding Date is described as to
type and amount on Schedule 7.08 (which schedule, for the avoidance of
doubt, shall be delivered to the Administrative Agent on or prior to the
Funding Date).


 


7.09                        Books and Records.


 


Maintain
(a) proper books of record and account, in which true and correct entries
in conformity with GAAP shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be, and (b) such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary.


 


7.10                        Inspection Rights.


 


Permit
representatives and independent contractors of the Administrative Agent or any
Lender (in the case of such Lender, coordinated through the Administrative
Agent) to (i) to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower and (ii) visit and inspect
any of its properties and examine its corporate, financial and operating
records, once per fiscal year of the Borrower at such reasonable times during
normal business hours, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any of its representatives or independent contractors or any Lender (in the
case of such Lender, coordinated through the Administrative Agent) may do any
of the foregoing at the expense of the Borrower at any time during normal business
hours.


 


7.11                        Use of Proceeds.


 


Use
the proceeds of the Term A Loans and Term B Loans to fund the IAC Dividend and
pay costs and expenses related to the Transactions (including entry into this
Credit Agreement) and use the proceeds of the Revolving Loans for working
capital and general corporate purposes (but in no event may any Revolving Loans
in excess of $25.0 million fund any portion of the IAC Dividend, the Spin-Off,
any transaction contemplated by Section 8.12 or any of the other
Transactions or any costs or expenses relating thereto) (but, for the avoidance
of doubt, proceeds of Revolving Loans may be used in respect of obligations
relating to such transactions after the Spin-Off Date, including, for example,
indemnification obligations or obligations relating to transition services), in
each case not in contravention of any Law or of any Credit Document.


 


7.12                        Joinder of Subsidiaries as
Guarantors.


 


Promptly
notify the Administrative Agent of the formation, acquisition (or other receipt
of interests) or existence of any Domestic Subsidiary that is not a Guarantor
(other than a non-


 


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Wholly Owned Subsidiary invested in pursuant to Section 8.02(k) (unless
such Subsidiary shall guarantee or provide Support Obligations in respect of
any material Indebtedness (other than the Obligations) of the Borrower or
another Subsidiary), or an Immaterial Subsidiary), which notice shall include
information as to the jurisdiction of organization, the number and class of
Capital Stock outstanding and ownership thereof (including options, warrants,
rights of conversion or purchase relating thereto), and with respect to any
such Subsidiary, within thirty (30) days (or up to ten (10) days later if
the Administrative Agent, in its sole discretion, shall agree thereto in
writing) of the formation, acquisition or other receipt of interests thereof,
cause the joinder of such Subsidiary as a Guarantor pursuant to Joinder
Agreements (or such other documentation in form and substance reasonably
acceptable to the Administrative Agent) accompanied by Organization Documents,
take all actions necessary to create and perfect a security interest in its
assets to the extent required by the Security Agreement or Pledge Agreement
and, if reasonably requested by the Administrative Agent, deliver favorable
opinions of counsel to such Subsidiary, in form and substance reasonably
satisfactory to the Administrative Agent. 
For the avoidance of doubt, if an Immaterial Subsidiary shall become a
Material Subsidiary, such Subsidiary shall thereupon comply with the foregoing.


 


7.13                        Pledge of Capital Stock.


 


From
and after the Spin-Off Date, pledge or cause to be pledged to the Collateral
Agent to secure the Obligations, other than in the case of Excluded Property: (a) one
hundred percent (100%) of the issued and outstanding Capital Stock of each
Domestic Subsidiary to the extent owned by a Credit Party within thirty (30)
days (or up to ten (10) days later if the Administrative Agent, in its
sole discretion, shall agree thereto in writing) of its formation, acquisition
or other receipt of such interests and (b) Capital Stock representing
sixty-five percent (65%) (or if less, the full amount owned by such Subsidiary)
of each class of the issued and outstanding Capital Stock of each First-Tier
Foreign Subsidiary to the extent owned by a Credit Party within thirty (30)
days (or up to twenty (20) days later if the Administrative Agent, in its sole
discretion, shall agree thereto in writing) of its formation, acquisition or
other receipt of such interests, in each case pursuant to the Pledge Agreement
or pledge joinder agreements, together with, if reasonably requested by the
Administrative Agent, opinions of counsel and any filings and deliveries reasonably
requested by the Collateral Agent in connection therewith to perfect the
security interests therein, all in form and substance reasonably satisfactory
to the Administrative Agent; provided that the Borrower shall not be
required to deliver to the Collateral Agent opinions of foreign counsel or
foreign-law pledge agreements with respect to the pledge of Capital Stock of
any Foreign Subsidiary unless the Administrative Agent shall have reasonably
requested such foreign counsel opinions or foreign-law pledge agreements (it
being understood and agreed that the Administrative Agent shall not be entitled
to request such foreign counsel opinions or foreign-law pledge agreements or
the delivery of stock certificates with respect to any Subsidiary that, together
with its Subsidiaries, generated less than $5.0 million of Consolidated EBITDA
for the four quarter period ending on the last day of the most recently ended
fiscal quarter at the end of which financial statements were required to have
been delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements,
ending on the last day of the most recent period referred to in the first
sentence of Section 6.05)). 
It is further understood and agreed that even if such foreign counsel
opinions, foreign law security agreements or stock certificates with respect to
any Subsidiary shall not be required to be delivered to the 


 


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Collateral Agent pursuant to the foregoing, the
Capital Stock thereof shall nevertheless constitute Collateral, except to the
extent constituting Excluded Property.


 


7.14                        Pledge of Other Property.


 


With
respect to each Credit Party, pledge and grant a security interest in all of
its personal property, tangible and intangible, owned and leased (except (a) Excluded
Property, (b) as otherwise set forth in Section 7.13 with
respect to Capital Stock and (c) as otherwise set forth in the Collateral
Documents) to secure the Obligations, within thirty (30) days (or up to ten (10) days
later, if the Administrative Agent, in its sole discretion, shall agree thereto
in writing) of the acquisition or creation thereof pursuant to such pledge and
security agreements, joinder agreements or other documents as may be required,
together with opinions of counsel and any filings and deliveries reasonably
requested by the Collateral Agent in connection therewith to perfect the
security interests therein, all in form and substance reasonably satisfactory
to the Administrative Agent.


 


7.15                        Further Assurances
Regarding Collateral.


 


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


 


(b)                                 In the event the Borrower or any other
Credit Party acquires (i) a fee interest in any real property after the
Closing Date (excluding Excluded Property) and such real property (together
with any improvements thereon), when taken together with all contiguous parcels
of real property interests (or other parcels of real property interests
proximately located and used in connection therewith) then held by any Borrower
or any other Credit Party, has a fair market value of at least $2.5 million,
the Borrower shall promptly (x) notify the Administrative Agent of such acquisition
and (y) deliver, or cause to be delivered, within sixty (60) days (or up
to fifteen (15) days later if the Administrative Agent, in its sole discretion,
consents thereto in writing) to the Collateral Agent a fully executed Mortgage
(subject to all Permitted Liens) over such real property in form and substance
reasonably satisfactory to the Administrative Agent, together with such title
insurance policies, surveys, appraisals (if required by law), “Life-of-Loan” Federal



 


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Emergency Management Agency Standard Flood Hazard Determinations
(together with notices about special flood hazard area status and flood
disaster assistance duly executed by the Borrower and each Loan Party relating
thereto), evidence of insurance (including, without limitation, flood
insurance), legal opinions and other documents and certificates, in each case,
in form and substance reasonably satisfactory to the Administrative Agent, as
shall be reasonably requested by the Administrative Agent.


 


(c)                                  Notwithstanding anything to the contrary
provided herein or in any Credit Document, the Borrower and the Subsidiaries
shall not be required to take any action required to perfect or maintain the
perfection of any of the Liens of the Agents or Lenders with respect to cash,
deposit accounts or securities accounts except to the extent such perfection is
achieved by filing of financing statements, although cash, deposit accounts and
securities accounts shall nevertheless constitute Collateral.


 


7.16                        Post-Closing Matters.


 


(a)                                  The Borrower shall, no later than 3
Business Days after the Funding Date (or such later date as the Administrative
Agent, in its sole discretion, shall agree to), provide to the Collateral Agent
copies of insurance certificates or policies with respect to all insurance required
to be maintained pursuant to the Credit Documents together with endorsements
identifying the Collateral Agent as additional insured or loss payee, with
respect to all insurance policies to be maintained with respect to the properties
of the Borrower and its subsidiaries forming any part of the Collateral.


 


(b)                                 The Borrower shall, no later than 90 days
after the Funding Date (or up to thirty (30) days later if the Administrative
Agent, in its sole discretion, shall agree thereto in writing), deliver to the
Collateral Agent local law pledge agreements and opinions of counsel (each in
form and substance reasonably satisfactory to the Collateral Agent) with
respect to First-Tier Foreign Subsidiaries which (on a consolidated basis with
each of their Subsidiaries and when combined with each First-Tier Foreign
Subsidiary (on a consolidated basis with each of its Subsidiaries) that is
organized under the laws of Canada), account for at least 70.0% of the total
revenues of all Foreign Subsidiaries of the Borrower and at least 70.0% of the
total assets of all Foreign Subsidiaries of the Borrower (in each case for the
most recent fiscal quarter and as of the most recent date which the Borrower
then has such financial information available).


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


Until the Loan Obligations shall have been paid in
full or otherwise satisfied, and the Commitments hereunder shall have expired
or been terminated, the Borrower will not, and will not permit any of its
Subsidiaries to:


 


8.01                        Liens.


 


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


 


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(a)                                  Liens created pursuant to the Credit
Documents;


 


(b)                                 Liens under the Collateral Documents
given to secure obligations under Swap Contracts between any Credit Party and
any Lender or Affiliate of a Lender or any Person that was a Lender or Affiliate
of a Lender at the time it entered into such Swap Contract, provided
that such Swap Contracts are otherwise permitted under Section 8.03;


 


(c)                                  Liens existing on the Closing Date and
listed on Schedule 8.01, or, to the extent not so listed, Liens, which,
when taken together with all other Liens existing on the Closing Date and not
so listed, secure Indebtedness in an aggregate principal amount not exceeding
$5.0 million, in each case together with any extensions, replacements, modifications
or renewals of the foregoing; provided that the collateral interests are
not broadened or increased or secure any Property not secured by such Liens on
the Closing Date (but shall be permitted to apply to after-acquired property
affixed or incorporated into the property covered by such Lien and the proceeds
and products of the foregoing);


 


(d)                                 Liens for taxes, assessments or
governmental charges or levies not yet due or to the extent non-payment thereof
is permitted under Section 7.05;


 


(e)                                  statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens
secure only amounts not yet due and payable or, if due and payable, are unfiled
and no other action has been taken to enforce the same, are not overdue by more
than 30 days, or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
subject to a foreclosure, sale or loss proceeding on account thereof (other
than a proceeding where foreclosure, sale or loss has been stayed));


 


(f)                                    Liens incurred or deposits made by any
member of the Consolidated Group in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


(g)                                 Liens in connection with attachments or
judgments (including judgment or appeal bonds) that do not result in an Event
of Default under Section 9.01(i);


 


(h)                                 easements, rights-of-way, covenants,
conditions, restrictions (including zoning restrictions), declarations, rights
of reverter (other than with respect to Property subject to a Mortgage), minor
defects or irregularities in title and other similar charges or encumbrances,
whether or not of record, that do not, in the aggregate, interfere in any
material respect with the ordinary course of business of the Borrower or its Subsidiaries,
or in respect of any real property which is subject to a Mortgage, any title
defects, liens, charges or encumbrances (other than such prohibited monetary
Liens) which the title 


 


102

















 


company is prepared to endorse or insure by exclusion
or affirmative endorsement reasonably acceptable to the Administrative Agent
and which is included in any title policy;


 


(i)                                     Liens on property of any Person securing
purchase money and Sale and Leaseback Transaction Indebtedness (including
capital leases and Synthetic Leases) of such Person, in each case to the extent
incurred under Section 8.03(c) (or any refinancing of such
Indebtedness incurred under Section 8.03(l)); provided, that
any such Lien attaches only to the Property financed or leased and such Lien
attaches prior to, at the time of or within one hundred eighty (180) days after
the later of the date of acquisition of such property or the date such Property
is placed in service (or, in the case of Liens securing a refinancing of such
Indebtedness pursuant to Section 8.03(l), any such Lien attaches
only to the Property that was so financed with the proceeds of the Indebtedness
so refinanced);


 


(j)                                     licenses, sublicenses, leases or
subleases granted to others not interfering in any material respect with the
business of any member of the Consolidated Group;


 


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


 


(l)                                     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 and Liens deemed to exist in
connection with Investments in repurchase agreements that constitute
Investments permitted by Section 8.02 hereof;


 


(m)                               normal and customary rights of setoff
upon deposits of cash or other Liens originating solely by virtue of any
statutory or common law provision relating to bankers liens, rights of setoff
or similar rights  in favor of banks or
other depository institutions not securing Indebtedness;


 


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


 


(o)                                 Liens on Property securing obligations
incurred under Section 8.03(h) (or any refinancing of such
Indebtedness incurred under Section 8.03(l)); provided that
the Liens are not incurred in connection with, or in contemplation or
anticipation of, the acquisition and do not attach or extend to any Property
other than the Property so acquired (or, in the case of Liens securing a
refinancing of such Indebtedness pursuant to Section 8.03(l), the
Property acquired with the proceeds of the Indebtedness so refinanced);


 


(p)                                 other Liens, provided that such
Liens do not secure obligations in excess of $40.0 million;


 


(q)                                 Liens in respect of any Indebtedness
permitted under Section 8.03(g) to the extent such Liens
extend only to Property of the Foreign Subsidiary or Foreign Subsidiaries
incurring such Indebtedness (other than a Foreign Subsidiary that is a borrower
under this Credit Agreement);


 


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(r)                                    pledges and deposits and other Liens
securing liability for reimbursement or indemnification obligations of
(including obligations in respect of bank guarantees for the benefit of)
insurance carriers providing property, casualty or liability insurance to the
Borrower or any Subsidiary;


 


(s)                                  Liens solely on any cash earnest money
deposits made by the Borrower or any of the Subsidiaries in connection with any
letter of intent or purchase agreement in respect of any Investment permitted
hereunder;


 


(t)                                    Liens securing obligations incurred
pursuant to Section 8.03(n);


 


(u)                                 Liens on Capital Stock in joint ventures
securing obligations of such joint venture, to the extent required by the terms
of the organizational documents or material contracts of such joint venture;


 


(v)                                 Liens on goods or inventory the purchase,
shipment or storage price of which is financed by a bank guarantee or bankers’
acceptance issued or created for the account of the Borrower or any Subsidiary
in the ordinary course of business so long as such Liens are extinguished when
such goods or inventory are delivered to the Borrower or a Subsidiary; provided,
that such Lien secures only the obligations of the Borrower or such
Subsidiaries in respect of such bankers’ acceptance or bank guarantee to the
extent permitted under Section 8.03;


 


(w)                               Liens securing insurance premiums
financing arrangements, provided, that such Liens are limited to the applicable
unearned insurance premiums; and


 


(x)                                   Liens in favor of the Borrower or any
Guarantor; provided that if any such Lien shall cover any Collateral, the
holder of such Lien shall execute and deliver to the Administrative Agent a
subordination agreement in form and substance reasonably satisfactory to the
Administrative Agent.


 


8.02                        Investments.


 


Make or
permit to exist any Investments, except:


 


(a)                                  cash and Cash Equivalents of or to be
owned by the Borrower or a Subsidiary;


 


(b)                                 Investments existing on, or contractually
committed as of, the Closing Date and set forth on Schedule 8.02 and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of any Investment pursuant to this clause (b) is not increased at any time
above the amount of such Investment existing on the Closing Date, unless such
increase is permitted by any clause of this Section 8.02 (other
than by this clause (b)), in which case the capacity of such other
clause shall be reduced by such increase;


 


(c)                                  to the extent not prohibited by
applicable Law, advances to officers, directors and employees and consultants
of the Borrower and Subsidiaries made for travel, 


 


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entertainment, relocation and other ordinary business
purposes in an aggregate amount not to exceed $5.0 million at any time
outstanding or, to the extent not used as part of or to increase the Cumulative
Credit, in connection with such person’s purchase of equity of the Borrower;


 


(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 to the extent reasonably necessary in order to prevent
or limit loss and any prepayments and other credits to suppliers, clients,
developers or purchasers or sellers of goods or services made in the ordinary
course of business;


 


(e)                                  except to the extent constituting an
Acquisition, Investments by the Borrower and Domestic Subsidiaries in Domestic
Credit Parties;


 


(f)                                    Investments by the Borrower and Domestic
Subsidiaries in Foreign Subsidiaries in an aggregate amount at any time not to
exceed the greater of $75.0 million and 3.0% of Consolidated Total Assets at
such time;


 


(g)                                 Investments by Foreign Subsidiaries in
any member of the Consolidated Group (including other Foreign Subsidiaries);


 


(h)                                 Support Obligations incurred pursuant to Section 8.03;


 


(i)                                     Investments comprised of Permitted
Acquisitions;


 


(j)                                     advances in the ordinary course of
business to secure developer contracts of the Borrower and its Subsidiaries;


 


(k)                                  Investments at any time outstanding in an
aggregate amount not to exceed $75.0 million plus, so long as (x) no
Default shall have occurred and be continuing or exist after giving effect
thereto and (y) after giving effect on a Pro Forma Basis to the Investment
to be made, as of the last day of the most recently ended fiscal quarter at the
end of which financial statements were required to have been delivered pursuant
to Section 7.01(a) or (b) (or, prior to such first
required delivery date for such financial statements, as of the last day of the
most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10, the amount
of the Cumulative Credit at such time (and
if the Investment is greater than $15.0 million, then the Borrower shall
deliver a certificate of a Responsible Officer as to the satisfaction of the
requirements in this clause (y)); provided that if any
Investment is made pursuant to this Section 8.02(k) in any
Person that is not a Domestic Credit Party and such Person thereafter becomes a
Domestic Credit Party, such Investment shall thereafter be deemed to have been
made pursuant to Section 8.02(e);


 


(l)                                     Investments representing non-cash
consideration received in connection with any Subject Disposition permitted
pursuant to Section 8.05;


 


(m)                               Investments contemplated by Section 8.12;


 


105

















 


(n)                                 Swap Contracts allowed by Section 8.03(d);


 


(o)                                 Investments resulting from pledges and
deposits under Section 8.01(f), (l) or (r);


 


(p)                                 Investments received in connection with
the bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with or judgments against, customers and suppliers, in each case in
the ordinary course of business or Investments acquired by the Borrower as a
result of a foreclosure by the Borrower or any of the Subsidiaries with respect
to any secured Investments or other transfer of title with respect to any secured
Investment in default;


 


(q)                                 loans or advances or other similar
transactions with customers, distributors, clients, developers, suppliers or
purchasers or sellers of goods or services, in each case, in the ordinary course
of business, regardless of frequency;


 


(r)                                    to the extent not used as part of or
increasing the Cumulative Credit, any Investment procured solely in exchange
for the issuance of Qualified Capital Stock;


 


(s)                                  Investments to the extent consisting of
the redemption, purchase, repurchase or retirement of any common Capital Stock
permitted under Section 8.06;


 


(t)                                    advances in the form of a prepayment of
expenses, so long as such expenses are being paid in accordance with customary
trade terms of the Borrower or such Subsidiary;


 


(u)                                 guarantees by the Borrower or any
Subsidiary of operating leases or of other obligations that do not constitute
Indebtedness, in each case entered into by the Borrower or any Subsidiary in
the ordinary course of business;


 


(v)                                 Investments consisting of the
non-exclusive licensing of intellectual property pursuant to joint marketing
arrangements with other Persons otherwise permitted hereunder; and


 


(w)                               Investments by the Borrower or any
Guarantor in any Foreign Subsidiary consisting solely of (x) the
contribution or other Disposition of Capital Stock or Indebtedness of any other
Foreign Subsidiary held directly by the Borrower or such Guarantor in exchange
for Indebtedness, Capital Stock (or additional share premium or paid in capital
in respect of Capital Stock) or a combination thereof of the Foreign Subsidiary
to which such contribution is made or (y) an exchange of Capital Stock of
such Foreign Subsidiary for Indebtedness of such Foreign Subsidiary.


 


8.03                        Indebtedness.


 


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


 


(a)                                  Indebtedness existing or arising under
this Credit Agreement and the other Credit Documents;


 


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(b)                                 Indebtedness existing on the Closing Date
set forth on Schedule 8.03 or, to the extent not listed on Schedule
8.03, the aggregate principal amount of which, when taken with all other
Indebtedness existing on the Closing Date and not so listed, does not exceed
$5.0 million;


 


(c)                                  capital lease obligations and purchase
money Indebtedness (including obligations in respect of capital leases) to
finance the purchase or acquisition of fixed assets, at any time outstanding
(when aggregated with the aggregate amount of refinancing Indebtedness
outstanding at such time pursuant to Section 8.03(l) in
respect of Indebtedness incurred pursuant to this Section 8.03(c))
not to exceed the greater of $50.0 million and 2.0% of Consolidated Total
Assets; provided that such Indebtedness when incurred shall not exceed
the purchase price of the asset(s) financed;


 


(d)                                 obligations under Swap Contracts entered
into to manage existing or anticipated risks and not for speculative purposes;


 


(e)                                  unsecured intercompany Indebtedness among
members of the Consolidated Group to the extent permitted by Section 8.02(e),
(f), (g) or (w);


 


(f)                                    unsecured Indebtedness of the Borrower to
the extent (i) no Default or Event of Default has occurred and is
continuing or would result from the incurrence thereof at such time; (ii) after
giving pro forma effect to the incurrence of such Indebtedness, as of the last
day of the most recently ended fiscal quarter at the end of which financial
statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10 (and if the Indebtedness incurred is
greater than $15.0 million, then the Borrower shall deliver a certificate of a
Responsible Officer as to the satisfaction of the requirements in this clause
(ii)); (iii) such Indebtedness matures no earlier than the Term B Loans
and has a Weighted Average Life to Maturity that is no shorter than the Term B
Loans; (iv) such Indebtedness does not have prepayment or redemption
events that are less favorable to the Borrower and its Subsidiaries than those
relating to the Term B Loans; and (v) such Indebtedness has other
terms that are, taken as a whole, not materially less favorable to the Borrower
and its Subsidiaries than the terms of the Credit Agreement; provided
that such Indebtedness may benefit from unsecured guarantees from the
Guarantors on the same basis as the Borrower has issued such Indebtedness;


 


(g)                                 Indebtedness of Foreign Subsidiaries and
guarantees thereof by other Foreign Subsidiaries, without duplication, in an
aggregate principal amount at any time outstanding not to exceed the greater of
$25.0 million and 1.0% of Consolidated Total Assets at such time (but not to
exceed, in any event, $40.0 million);


 


(h)                                 Indebtedness acquired or assumed pursuant
to a Permitted Acquisition in an aggregate principal amount at any time
outstanding (when aggregated with the aggregate amount of refinancing
Indebtedness outstanding at such time pursuant to Section 8.03(l) in
respect of Indebtedness incurred pursuant to this Section 8.03(h))
not to exceed 


 


107





















 


$25.0 million; provided
that (a) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition and (b) after
giving pro forma effect to the incurrence of such Indebtedness, as of the last
day of the most recently ended fiscal quarter at the end of which financial
statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10;


 


(i)                                     Indebtedness arising under any
performance or surety bond, completion bond or similar obligation entered into
in the ordinary course of business consistent with past practice;


 


(j)                                     Indebtedness of the Borrower and its
Subsidiaries (and guarantees thereof, without duplication) not contemplated in
the foregoing clauses of this Section 8.03 in an aggregate
principal amount at any time outstanding not to exceed $40.0 million;


 


(k)                                  Indebtedness incurred under the Senior
Notes and guarantees by the Guarantors thereof;


 


(l)                                     any refinancing of Indebtedness incurred
pursuant to Section 8.03(b), (c), (f), (h) or
(k) so long as (i) if the Indebtedness being refinanced is
Subordinated Debt, then such refinancing Indebtedness shall be at least as
subordinated in right of payment and otherwise to the Obligations as the
Indebtedness being refinanced, (ii) the principal amount of the
refinancing Indebtedness is not greater than the principal amount of the Indebtedness
being refinanced, together with any premium paid, and accrued interest and
reasonable fees in connection therewith thereon and reasonable costs and expenses
incurred in connection therewith, (iii) the final maturity and Weighted
Average Life to Maturity of the refinancing Indebtedness is not earlier or
shorter, as the case may be, than the Indebtedness being refinanced, (iv) no Subsidiary (other than a Credit Party)
that is not an obligor with respect the Indebtedness to be refinanced shall be
an obligor with respect to the refinancing Indebtedness and (v) the
material terms (other than as to interest rate, which shall be on then market
terms) of the refinancing Indebtedness taken as a whole are at least as
favorable to the Consolidated Group and the Lenders as under the Indebtedness
being refinanced;


 


(m)                               overdrafts paid within 5 Business Days;


 


(n)                                 Indebtedness in respect of trade letters
of credit, warehouse receipts or similar instruments issued to support
performance obligations (other than obligations in respect of Indebtedness) in
the ordinary course of business; provided that the aggregate stated
amount of any such trade letters of credit, warehouse receipts or similar instruments
shall not exceed, as of the date of issuance, amendment or extension thereof,
$15.0 million minus the aggregate L/C Obligations outstanding on such date;


 


(o)                                 Indebtedness supported by a Letter of
Credit, in a principal amount not in excess of the stated amount of such Letter
of Credit;


 


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


 


(q)                                 Indebtedness representing deferred
compensation to employees of the Borrower or any Subsidiary incurred in the
ordinary course of business;


 


(r)                                    Indebtedness consisting of promissory
notes issued by the Borrower to current or former officers, directors and
employees, their respective estates, spouses or former spouses issued in
exchange for the purchase or redemption by the Borrower of Qualified Capital
Stock permitted by Section 8.06(f);  provided that (a) the Borrower shall be able to make a
Restricted Payment pursuant to Section 8.06(f) in an amount
equal to the principal amount of each such note at the time such note is
issued, and an amount equal to the principal amount of each such note shall
reduce the amount of Restricted Payments able to be made under Section 8.06(f) and
(b) the Borrower shall be able to make a Restricted Payment pursuant to Section 8.06(f) in
the amount of any other payment on each such note at the time such payment is
made, and each such payment shall reduce the Restricted Payments available to
be able to be made under Section 8.06(f);


 


(s)                                  Indebtedness consisting of obligations of
the Borrower or any Subsidiary under deferred compensation, indemnification,
adjustment of purchase or acquisition price or other similar arrangements
incurred by such Person in connection with the Transactions and Permitted
Acquisitions or any other Investment expressly permitted hereunder;


 


(t)                                    all premium (if any), interest (including
post petition interest), fees, expenses, charges and additional or contingent
interest on obligations described in paragraphs (a) through (s) above;
and


 


(u)                                 Support Obligations by any member of the
Consolidated Group in respect of Indebtedness incurred under subsections (a) through
(t) of this Section 8.03, solely to the extent such
member of the Consolidated Group would have itself been able to originally
incur such Indebtedness.


 


8.04                        Mergers and Dissolutions.


 


(a)                                  Enter into a transaction of merger or
consolidation, except that:


 


(i)                           a Domestic Subsidiary of the Borrower may
be a party to a transaction of merger or consolidation with the Borrower or
another Domestic Subsidiary of the Borrower; provided that if the
Borrower is a party to such transaction, the Borrower shall be the surviving
Person; provided, further that if the Borrower is not a party to
such transaction but a Guarantor is, such Guarantor shall be the surviving
Person or the surviving Person shall become a Guarantor immediately upon the
consummation of such transaction;


 


(ii)                        a Foreign Subsidiary may be party to a
transaction of merger or consolidation with the Borrower or a Subsidiary of the
Borrower; provided that 


 


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(A) if the Borrower
is a party thereto, it shall be the surviving entity, (B) if a Guarantor
is a party thereto, it shall be the surviving Person or the surviving Person
shall become a Guarantor immediately following the consummation of such
transaction, and (C) if a Foreign Subsidiary is a party thereto and a
Domestic Subsidiary is not a party thereto, the surviving entity shall be a
Foreign Subsidiary and the Borrower and its Subsidiaries shall be in compliance
with the requirements of Section 7.13;


 


(iii)       a Subsidiary may enter into a transaction of merger or
consolidation in connection with a Subject Disposition effected pursuant to Section 8.05,
so long as no more assets are Disposed of as a result of or in connection with
any transaction undertaken pursuant to this clause (iii) than would
otherwise have been allowed pursuant to Section 8.05;


 


(iv)      mergers and consolidations contemplated by Section 8.12
shall be permitted; and


 


(v)         the Borrower or any Subsidiary may merge with any
other Person in connection with an Investment permitted pursuant to Section 8.02
so long as the continuing or surviving Person shall be a Subsidiary, which
shall be a Guarantor if the merging Subsidiary was a Guarantor and which
together with each of its Subsidiaries shall have complied with the
requirements of Section 7.12; provided that following any
such merger or consolidation involving the Borrower, the Borrower is the
surviving Person.


 


(b)                                 Except in connection with a transaction
permitted by Section 8.04(a)(i), the Borrower will not dissolve,
liquidate or wind up its affairs.


 


8.05                        Dispositions.


 


Make
any Subject Disposition or Specified Intercompany Transfer, unless (i) in
the case of a Subject Disposition only, at least seventy-five percent (75%) of
the consideration received from each such Subject Disposition is cash or Cash
Equivalents, (ii) such Subject Disposition or Specified Intercompany
Transfer is made at fair market value and (iii) the aggregate amount of
Property so Disposed (valued at fair market value thereof) in all Subject
Dispositions and Specified Intercompany Transfers in any fiscal year of the
Borrower does not exceed $50.0 million; provided that any amount not
used in any such fiscal year may be carried forward and used in the two
immediately succeeding fiscal years of the Borrower (but no other fiscal
years).


 


8.06                        Restricted Payments.


 


Declare
or make, directly or indirectly, any Restricted Payment, except that:


 


(a)                                  each Subsidiary may make Restricted
Payments to the Borrower or any Wholly Owned Subsidiary, or in the case of a
Subsidiary that is not a Wholly Owned Subsidiary, to each equity holder of such
Subsidiary on a pro rata basis (or on more favorable terms from the perspective
of the Borrower and its Wholly Owned Subsidiaries), 


 


110





















 


based on their relative
ownership interests or, solely to the extent required by law and involving de
minimis amounts, on a non-pro rata basis to such equity holders;


 


(b)                                 Restricted Payments contemplated by Section 8.12
shall be permitted.


 


(c)                                  any refinancing permitted pursuant to Section 8.03(l) shall
be permitted;


 


(d)                                 [Reserved];


 


(e)                                  the Borrower may declare and make
payments in respect of the IAC Dividend on or about the Funding Date;


 


(f)                                    the Borrower may make Restricted Payments
at any time in an aggregate amount not to exceed $50.0 million plus if (i) as
of the last day of the most recently ended fiscal quarter at the end of which
financial statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), (x) the Borrower would
be in compliance with Section 8.10 and (y) the Consolidated
Total Leverage Ratio would not be in excess of 3.00:1.00 (and if the Restricted Payment is greater
than $15.0 million, then the Borrower shall deliver a certificate of a
Responsible Officer as to the satisfaction of the requirements in this clause
(i)) and (ii) no Default shall have occurred and be continuing or
exist after giving effect thereto, the amount of the Cumulative Credit at such
time;


 


(g)                                 the Borrower may make payments or
prepayments of principal on, or redemptions, repurchases or acquisitions for
value of, its Indebtedness (other than Subordinated Indebtedness) that is not
secured by a Lien (x) in an aggregate principal amount for all such
payments, prepayments, redemptions, repurchases and acquisitions not to exceed
$100.0 million or (y) at any time following the date that no Term A Loans,
Term B Loans or Incremental Term Loans are outstanding;


 


(h)                                 to the extent not used as part of or
increasing the Cumulative Credit, the Borrower may purchase, redeem or
otherwise acquire shares of its common Capital Stock with the proceeds received
from the substantially concurrent issue of new shares of its common Capital
Stock;


 


(i)                                     the members of the Consolidated Group may
prepay or repay intercompany Indebtedness otherwise permitted hereunder owed to
other members of the Consolidated Group; and


 


(j)                                     repurchases of Capital Stock deemed to
occur upon the “cashless exercise” of stock options or warrants or upon the
vesting of restricted stock units if such Capital Stock represents the exercise
price of such options or warrants or represents withholding taxes due upon such
exercise or vesting.


 


8.07                        Change in Nature of
Business.


 


Engage
in any material line of business other than a Permitted Business.


 


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8.08                        Change in Accounting Practices
or Fiscal Year.


 


Change
its (a) accounting policies or reporting practices, except as required by
GAAP, or (b) fiscal year of the Borrower or any Subsidiary, in each case
without prior written notice to the Administrative Agent and the Lenders.


 


8.09                        Transactions with
Affiliates.


 


Enter
into any transaction of any kind with any Affiliate of the Borrower (other than
between or among (x) Borrower and/or one or more Guarantors or (y) one
or more Subsidiaries of the Borrower that are not Guarantors), whether or not
in the ordinary course of business, other than (i) on fair and reasonable
terms substantially as favorable in all material respects to the Borrower or
the applicable Subsidiary as would be obtainable by the Borrower or such Subsidiary
at the time in a comparable arm’s-length transaction with a Person other than
an Affiliate, (ii) Restricted Payments permitted by Section 8.06
(other than Section 8.06(c)), (iii) Investments permitted by Section 8.02
(c), (f), (g) or (w) or, to the extent that
such transaction is with a Person that becomes an Affiliate of the Borrower or
a Subsidiary solely as a result of such transaction, any transaction pursuant
to Section 8.02(i) or (k) and (iv) transactions
contemplated by Section 8.12 shall be permitted.


 


8.10                        Financial Covenants.


 


(a)                                  Consolidated Total Leverage Ratio. 
Permit the Consolidated Total Leverage Ratio as of the last day of any
fiscal quarter ending on or after September 30, 2008 to be greater than
3.5 to 1.0.


 


(b)                                 Consolidated Interest Coverage Ratio. 
Permit the Consolidated Interest Coverage Ratio as of the last day of
any fiscal quarter ending on or after September 30, 2008 to be less than
3.0 to 1.0.


 


8.11                        Limitation on Subsidiary
Distributions.


 


Directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary, or pay any Indebtedness owed to the Borrower or a Subsidiary, (b) make
loans or advances to the Borrower or any Subsidiary or (c) transfer any of
its properties to the Borrower or any Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) applicable Law; (ii) this
Credit Agreement and the other Credit Documents; (iii) the Senior Notes; (iv) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of a Subsidiary; (v) customary provisions restricting
assignment of any agreement entered into by a Subsidiary in the ordinary course
of business; (vi) any holder of a Lien permitted by Section 8.01
restricting the transfer of the property subject thereto; (vii) customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 8.05 pending the consummation
of such sale; (viii) without affecting the Credit Parties’ obligations
under Sections 7.12, 7.13 or 7.14, customary provisions in
partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other similar agreements
entered into in the ordinary course 


 


112

















 


of business that restrict the transfer of ownership interests
in such partnership, limited liability company or similar person; (ix) restrictions
on cash or other deposits or net worth imposed by suppliers or landlords under
contracts entered into in the ordinary course of business; (x) any instrument
governing Indebtedness assumed in connection with any Permitted Acquisition
pursuant to Section 8.03(h), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired; (xi) in
the case of any Subsidiary that is not a Wholly Owned Subsidiary in respect of
any matters referred to in clauses (b) and (c) above, restrictions
in such person’s Organization Documents or pursuant to any joint venture
agreement or stockholders agreements solely to the extent of the Capital Stock
of or property held in the subject joint venture or other entity; (xii)
contractual encumbrances or restrictions in effect on the Closing Date under
Indebtedness existing on the Closing Date and set forth on Schedule 8.03,
(xiii) any restrictions imposed by any agreement relating to Indebtedness
incurred pursuant to Section 8.03(f) to the extent such restrictions
are not more restrictive, taken as a whole, than the restrictions contained in
the Senior Notes as in effect on the Closing Date; (xiii) customary net worth
provisions contained in real property leases entered into by the Borrower or
any Subsidiary, so long as the Borrower has determined in good faith that such
net worth provisions would not reasonably be expected to impair the ability of
the Borrower and its Subsidiaries to meet their ongoing obligations; (xiv) any
agreement in effect at the time any Person becomes a Subsidiary, so long as
such agreement was not entered into in contemplation of such Person becoming a
Subsidiary, (xv) restrictions in agreements representing Indebtedness permitted
under Section 8.03 of a Subsidiary of the Borrower that is not a Guarantor;
(xvi) restrictions on cash or other deposits imposed by customers under
contracts entered into in the ordinary course of business; and (xvii) any
encumbrances or restrictions imposed by any refinancings that are otherwise
permitted by the Credit Documents of the contracts, instruments or obligations
referred to above; provided
that such refinancings are no more materially restrictive with respect to such
encumbrances and restrictions than those prior to such amendment or refinancing.


 


8.12                        Spin-Off.


 


Notwithstanding
anything to the contrary provided herein or any Credit Document, nothing in
this Credit Agreement shall prohibit the Spin-Off and any transaction
undertaken in connection therewith (including the conversion of the Borrower or
any of its Subsidiaries to a limited liability company in the country of its
organization, Restricted Payments or intercompany transfers of cash,
Subsidiaries or other assets among the Borrower and its Subsidiaries and to IAC
or any of its Subsidiaries, purchases of assets from IAC or any of its
Subsidiaries, and payments of intercompany payables among the Borrower and its
Subsidiaries or to IAC or any of its Subsidiaries (including “true-up” payments
to IAC or any of its Subsidiaries subsequent to completion of the Spin-Off),
whether in the ordinary course of business or in preparation for the Spin-Off
or otherwise in connection therewith), in each case to the extent contemplated
by the Separation Agreement.  For the
avoidance of doubt, but not in derogation of the requirements of the previous
sentence, any Restricted Payments made or transactions with any Affiliate of
the Borrower entered into in the ordinary course of business consistent with
past practice between the Closing Date and the Spin-Off Date shall not be prohibited
by the terms of this Credit Agreement.


 


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8.13                        Transfers/Investments with
Respect to Certain Subsidiaries.


 


Make
or permit any Disposition of Property to, or any Investment in, any Guarantor
(other than de minimis Property or Investments) in
respect of which no opinion referred to in Section 5.02(e) has been
delivered to the Administrative Agent, unless and until an opinion with respect
to such Guarantor has been so delivered (it being understood that the only
Guarantors in respect of which no such opinion may be delivered on the Funding
Date shall be Guarantors that meet the requirements of the definition of
Immaterial Subsidiary without giving effect to the proviso to such definition).


 


ARTICLE IX


 


EVENTS OF DEFAULT AND REMEDIES


 


9.01                        Events of Default.


 


Any of
the following shall constitute an Event of Default:


 


(a)                                  Non-Payment. 
The Borrower or any other Credit Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any amount
of principal of any L/C Obligation, or (ii) within three (3) Business
Days after the same becomes due or required to be paid herein, any interest on
any Loan or any regularly accruing fee due hereunder or any other amount payable
hereunder or under any other Credit Document; or


 


(b)                                 Specific Covenants. 
The Borrower or any other Credit Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.03(a), 7.11
or Article VIII or, with respect to the existence of the Borrower
only, Section 7.04; or


 


(c)                                  Other Defaults. 
The Borrower or any other Credit Party fails to perform or observe any
other covenant or agreement (not specified in subsections (a) or (b) above)
contained in any Credit Document on its part to be performed or observed and
such failure continues for thirty (30) calendar days after written notice to
the defaulting party or the Borrower by the Administrative Agent or the
Required Lenders; or


 


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


 


(e)                                  Cross-Default.  (i) Any
member of the Consolidated Group (A) fails (beyond the period of grace (if
any) provided in the instrument or agreement pursuant to which such
Indebtedness was created) to make any payment when due (whether by scheduled
maturity, interest, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Support Obligations (other than Indebtedness
hereunder or Indebtedness under Swap Contracts) having a principal amount (with
principal amount 


 


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for the purposes of this clause (e) including
undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement), when taken
together with the principal amount of all other Indebtedness and Support
Obligations as to which any such failure has occurred, exceeding $20.0 million
or (B) fails to observe or perform any other agreement or condition relating
to any Indebtedness or Support Obligations or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which failure or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Support Obligations (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Support Obligations to become payable or cash collateral in
respect thereof to be demanded, which has an unpaid principal amount, when
taken together with the unpaid principal amounts of all other Indebtedness and
Support Obligations as to which any such failure or event has occurred, exceeding
$20.0 million; or (ii) there occurs under any Swap Contract an “early
termination date” (or term of similar import) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the “defaulting party” (or term of similar import) or (B) any “termination
event” (or term of similar import) under such Swap Contract as to which the
Borrower or any Subsidiary is an “affected party” (or term of similar import)
and, when taken together with all other Swap Contracts as to which events of
default or events referred to in the immediately preceding clauses (A) or
(B) are applicable, the Swap Termination Value owed by the Borrower
and its Subsidiaries exceeds $20.0 million; or


 


(f)                                    Insolvency  Proceedings,  Etc.  The  Borrower,  any  Guarantor  or  any  Significant  Subsidiary  institutes  or  consents  to  the  institution  of  any  proceeding  under  any  Debtor  Relief  Law,  or  makes  an  assignment  for  the  benefit  of  creditors;  or  applies  for  or  consents  to  the  appointment  of  any  receiver,  trustee,  custodian,  conservator,  liquidator,  rehabilitator  or  similar  officer  for  it  or  for  all  or  any  material  part  of  its  property;  or  any  receiver,  trustee,  custodian,  conservator,  liquidator,  rehabilitator  or  similar  officer  is  appointed  without  the  application  or  consent  of  such  Person  and  the  appointment  continues  undischarged  or  unstayed  for  sixty  (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  sixty  (60)  calendar  days,  or  an  order  for  relief  is  entered  in  any  such  proceeding;  or


 


(g)                                 Change of Control. 
There shall have occurred a Change of Control of the Borrower; or


 


(h)                                 Inability to Pay Debts; Attachment. 
The Borrower, any Guarantor or any Significant Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
thirty (30) days after its issue or levy; or


 


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(i)                                     Judgments.  There is
entered against any member of the Consolidated Group one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding $20.0 million (to the extent not covered
by independent third-party insurance as to which the insurer does not dispute
coverage or otherwise discharged), and there is a period of 30 consecutive days
during which a stay of enforcement of such judgments, by reason of a pending
appeal or otherwise, is not in effect; or


 


(j)                                     ERISA.  (i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that
has resulted or would reasonably be expected to result in liability of a Credit
Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $20.0 million, or (ii) a Credit
Party fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of $20.0
million; or


 


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


 


(l)                                     Collateral Documents. 
Any Collateral Document after delivery thereof pursuant to Section 5.02,
7.13 or 7.14 shall for any reason cease to create a valid and perfected
first priority Lien to the extent required by the Collateral Documents (subject
to Liens permitted by Section 8.01) on Collateral that is (i) purported
to be covered thereby and (ii) comprises Property which, when taken
together with all Property as to which such a Lien has so ceased to be
effective, has a fair market value in excess of $7.5 million (other than by
reason of (x) the express release thereof pursuant to Section 10.10,
(y) the failure of the Collateral Agent to retain possession of Collateral
physically delivered to it or (z) the failure of the Collateral Agent to
timely file Uniform Commercial Code continuation statements).


 


9.02                        Remedies upon Event of
Default.


 


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


 


(a)                                  declare the Commitments of the Lenders
and the 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 Credit Document to be
immediately due and payable, without presentment, 


 


116





















 


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 or to the Lenders under the
Credit Documents or applicable Law;


 


provided, however, that upon the occurrence of an Event
of Default under Section 9.01(f) or (h), 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.


 


9.03                        Application of Funds.


 


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


 


First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including all
reasonable fees, expenses and disbursements of any law firm or other counsel
and amounts payable under Article III) payable to the
Administrative Agent and the Collateral Agent, in each case in its capacity as
such;


 


Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal,
interest, Facility Fees, Commitment Fees and Letter of Credit Fees) payable to
the Lenders (including all reasonable fees, expenses and disbursements of any
law firm or other counsel and amounts payable under Article III),
ratably among the Lenders in proportion to the respective amounts described in
this clause Second payable to them;


 


Third, to payment of that portion of the Obligations
constituting accrued and unpaid Commitment Fees and Facility Fees, Letter of
Credit Fees and interest on the Loans, L/C Borrowings and other Obligations,
ratably among the Lenders, the Swingline Lender and the L/C Issuer in
proportion to the respective amounts described in this clause Third payable
to them;


 


Fourth, to (a) payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings, (b) payment
of breakage, termination or other amounts owing in respect of any Swap Contract
between any Credit Party and any Lender, or any Affiliate of a Lender, to the
extent such Swap Contract is permitted hereunder, (c) payments of amounts
due under any Treasury Management Agreement 


 


117

















 


between any Credit Party and any Lender, or any
Affiliate of a Lender and (d) the Administrative Agent for the account of
the L/C Issuer, to Cash Collateralize that portion of the L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably among
such parties in proportion to the respective amounts described in this clause
Fourth payable to them; and


 


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


 


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


 


ARTICLE X


 


AGENTS


 


10.01                 Appointment and
Authorization of Administrative Agent and Collateral Agent.


 


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


 


(b)                                 Each Lender hereby irrevocably appoints,
designates and authorizes the Collateral Agent to take such action on its
behalf under the provisions of this Credit Agreement and each Collateral
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any Collateral
Document, together with such powers as are reasonably incidental thereto.  In this connection, the Collateral Agent, and
any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral
Agent pursuant to Section 10.05 for purposes of holding or enforcing
any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents, or for exercising any rights and remedies thereunder at
the direction of the Collateral Agent), shall be entitled to the benefits of
all provisions of this Article X and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Credit Documents)
as if set forth in full herein with respect thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any Collateral Document, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein or therein, nor shall
the Administrative Agent or the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, 


 


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duties, obligations or liabilities shall be read into this Credit
Agreement or any Collateral Document or otherwise exist against the
Administrative Agent or the Collateral Agent. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” herein and in the Collateral Documents with reference to the
Administrative Agent or the Collateral 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.  The Collateral Agent shall act
on behalf of the Lenders with respect to any Collateral and the Collateral
Documents, and the Collateral Agent shall have all of the benefits and
immunities (i) provided to the Administrative Agent under the Credit
Documents with respect to any acts taken or omissions suffered by the Collateral
Agent in connection with any Collateral or the Collateral Documents as fully as
if the term “Administrative Agent” as used in such Credit Documents included
the Collateral Agent with respect to such acts or omissions, and (ii) as
additionally provided herein or in the Collateral Documents with respect to the
Collateral Agent.


 


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


 


10.02                 Rights as a Lender.


 


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


 


10.03                 Exculpatory Provisions.


 


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


 


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


 


(b)                                 shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Credit Documents
that the Agents are required to exercise as 


 


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directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Credit Documents), provided
that no Agent shall be required to take any action that, in its opinion or the
opinion of its counsel, may expose such Agent to liability or that is contrary
to any Credit Document or applicable law; and


 


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


 


Neither
the Administrative Agent nor the Collateral Agent shall be liable for any
action taken or not taken by it (i) with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as such Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02)
or (ii) in the absence of its own gross negligence or willful
misconduct.  The Administrative Agent and
the Collateral Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to such Agent by the
Borrower, a Lender or the L/C Issuer.


 


No
Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Credit
Agreement or any other Credit Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Credit Agreement, any other Credit
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral
Documents, (v) the value or the sufficiency of any Collateral or (vi) the
satisfaction of any condition set forth in Article V or elsewhere
herein, other than to confirm receipt of items expressly required to be delivered
to such Agent.


 


10.04                 Reliance by Administrative
Agent and Collateral Agent.


 


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


 


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issuance of such Letter of Credit.  Each of the Administrative Agent and the
Collateral Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by them in accordance with the
advice of any such counsel, accountants or experts.


 


10.05                 Delegation of Duties.


 


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


 


10.06                 Resignation of the Administrative
Agent or the Collateral Agent.


 


Each
of the Administrative Agent and the Collateral Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (provided, no consent shall be required if an Event of Default
has occurred and is continuing), to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States.  If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may on behalf of the Lenders and
the L/C Issuer, with the consent of the Borrower (provided, no consent
shall be required if an Event of Default has occurred and is continuing),
appoint a successor Administrative Agent or Collateral Agent, as the case may
be, meeting the qualifications set forth above; provided that if the
Administrative Agent or Collateral Agent, as the case may be, shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with
such notice and (1) the retiring Agent shall be discharged from its duties
and obligations hereunder and under the other Credit Documents (except that in
the case of any collateral security held by the Administrative Agent or
Collateral Agent, as the case may be, on behalf of the Lenders or the L/C
Issuer under any of the Credit Documents, such retiring Agent shall continue to
hold such collateral security until such time as a successor Administrative
Agent or Collateral Agent, as the case may be, is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent or Collateral Agent, as the case may be, shall
instead be made by or to each Lender and the L/C Issuer directly, until such
time as the Required Lenders appoint a successor Administrative Agent or
Collateral Agent, as the case may be, as provided for above in this
Section.  Upon the acceptance of a
successor’s appointment as Administrative Agent or Collateral Agent, as the
case may be, hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent or Collateral Agent, as the case may be, and the retiring
Administrative Agent or 


 


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Collateral Agent, as the case may be, shall be
discharged from all of its duties and obligations hereunder or under the other
Credit Documents (if not already discharged therefrom as provided above in this
Section).  The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Agent’s resignation
hereunder and under the other Credit Documents, the provisions of this Article and
Section 11.04 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring
Agent was acting as Administrative Agent or Collateral Agent, as the case may
be.


 


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


 


10.07                 Non-Reliance on
Administrative Agent, Collateral Agent and Other Lenders.


 


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


 


10.08                 No Other Duties.


 


Anything
herein to the contrary notwithstanding, none of the “Syndication Agent,” “Co-Documentation
Agents,” “Co-Lead Arrangers” and “Co-Book Managers” listed on the cover page hereof
shall have any powers, duties or responsibilities under this Credit Agreement
or any of the other Credit Documents, except in its capacity, as applicable, as
the Administrative Agent, the Collateral Agent, a Lender or the L/C Issuer
hereunder.


 


10.09                 Administrative Agent or
Collateral 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 


 


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Credit Party, the Administrative Agent or Collateral
Agent (irrespective of whether the principal of any Loan or L/C Obligation
shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise:


 


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


 


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


 


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


 


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


 


10.10                 Collateral and Guaranty
Matters.


 


The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent and
the Collateral Agent, at its option and in its discretion:


 


(a)                                  to release any Guarantor from its
obligations under the Collateral Documents if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder, or if the
conditions set forth in clause (b)(i) below are satisfied;


 


(b)                                 to release any Lien on any property
granted to or held by the Collateral Agent under any Credit Document (i) upon
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (A) contingent indemnification obligations 


 


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not then due and payable
and (B) obligations and liabilities under Swap Contracts and Treasury
Management Agreements not then due and payable) and the expiration or
termination of all Letters of Credit (or if any Letters of Credit shall remain
outstanding, upon (x) the cash collateralization of the Outstanding Amount
of Letters of Credit on terms satisfactory to the Administrative Agent and L/C
Issuer or (y) the receipt by the L/C Issuer of a backstop letter of credit
on terms satisfactory to the Administrative Agent and 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 Credit Document (other than any such sale to another
Credit Party), or (iii) subject to Section 11.01, if approved,
authorized or ratified in writing by the Required Lenders; and


 


(c)                                  to subordinate any Lien on any property
granted to or held by the Collateral Agent under any Credit Document to the
holder of any Lien on such property that is permitted by Section 8.01(i).


 


Upon
request by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the authority of the Collateral Agent to
release or subordinate its interest in particular property and of the
Administrative Agent to release any Guarantor from its obligations hereunder
pursuant to this Section 10.10 in connection with a transaction
permitted hereunder.


 


10.11                 Withholding Tax.


 


To the
extent required by any applicable law, the Administrative Agent may withhold
from any payment to any Lender any applicable Tax.  If the IRS or any other authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender for any reason (including, without limitation, because the
appropriate form was not delivered or not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstance
that rendered the exemption from, or reduction of withholding tax ineffective),
such Lender shall indemnify and hold harmless the Administrative Agent for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or
otherwise, including any interest, additions to tax or penalties thereto,
together with all expenses incurred, including legal expenses and any other
out-of-pocket expenses, whether or not such tax was correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error.  For
the avoidance of doubt, this Section shall not limit or expand any Tax
indemnification obligation of any Credit Party under this Credit Agreement.


 


10.12                 Treasury Management
Agreements and Swap Contracts.


 


Except
as otherwise expressly set forth herein or in any Collateral Document, no Treasury
Management Bank or Hedge Bank that obtains the guarantees hereunder or any
Collateral by virtue of the provisions hereof or of any Collateral Document
shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Credit Document or otherwise in
respect of the Collateral (including the release or impairment of any
Collateral) other than in its capacity as a Lender and, in such case, only to
the extent expressly 


 


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provided in the Credit Documents.  Notwithstanding any other provision of this Article X
to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Treasury Management Agreements and Swap Contracts
unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative
Agent may request, from the applicable Treasury Management Bank or Hedge Bank,
as the case may be.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01                 Amendments, Etc.


 


No
amendment or waiver of, or any consent to deviation from, any provision of this
Credit Agreement or any other Credit Document shall be effective unless in
writing and signed by the Borrower or the applicable Credit Party, as the case
may be, and the Required Lenders and the Administrative Agent (at the direction
of the Required Lenders), and each such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given; provided, however, that:


 


(a)                                  without the consent of each Lender, no
such amendment, waiver or consent shall:


 


(i)                           amend or waive any condition precedent to
the initial Credit Extension set forth in Section 5.02 or (solely
with respect to the initial Credit Extension) any condition precedent set forth
in Section 5.03,


 


(ii)                        change any provision of this Credit
Agreement regarding pro rata sharing or pro rata funding with respect to (A) the
making of advances (including participations), (B) the manner of
application of payments or prepayments of principal, interest, or fees, (C) the
manner of application of reimbursement obligations from drawings under Letters
of Credit, or (D) the manner of reduction of commitments and committed
amounts,


 


(iii)                     change any provision of this Section 11.01(a) 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,


 


(iv)                    release all or substantially all of the Collateral
(other than as provided herein as of the Closing Date or as appropriate in
connection with transactions permitted hereunder as of the Closing Date), or


 


(v)                       release all or substantially all of the
value of the guarantees provided by the Guarantors (other than as provided
herein as of the Closing Date or as appropriate in connection with transactions
permitted hereunder as of the Closing Date) or, if any Foreign Subsidiary shall
have been added as an additional 


 


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borrower under the
Approved Currency Revolving Facility pursuant to Section 1.08,
release the Borrower from its guarantee of the obligations in respect of any
borrowings by such Foreign Subsidiary;


 


(b)                                 without the consent of each Lender
adversely affected thereby, no such amendment, waiver or consent shall:


 


(i)                           extend or increase the Commitment of any
Lender (or reinstate any Commitment terminated pursuant to Section 9.02),
it being understood that the amendment or waiver of an Event of Default or a
mandatory reduction or a mandatory prepayment in Commitments shall not be
considered an increase in Commitments,


 


(ii)                        waive non-payment or postpone any date
fixed by this Credit Agreement or any other Credit Document for any payment of
principal, interest, fees or other amounts due to any Lender hereunder or under
any other Credit Document or change the scheduled final maturity of any Loan,


 


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


 


(iv)                    except as otherwise expressly permitted in the Credit
Documents as in effect on the Closing Date, expressly subordinate any of the
Obligations in right of payment to any other obligations or subordinate all or
substantially all of the Liens securing the Obligations to Liens securing any
other Indebtedness;


 


(c)                                  unless signed by the Required Term A
Lenders, no such amendment, waiver or consent shall:


 


(i)                           amend or waive the manner of application
of any mandatory prepayment to the Term A Loans under Section 2.06(c),
or


 


(ii)                        amend or waive the provisions of this Section 11.01(c) or
the definition of “Required Term A Lenders”;


 


(d)                                 unless signed by the Required Term B
Lenders, no such amendment, waiver or consent shall:


 


(A)                              amend or waive the manner of application
of any mandatory prepayment to the Term B Loans under Section 2.06(c),
or


 


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(B)                                amend or waive the provisions of this Section 11.01(c) or
the definition of “Required Term B Lenders”;


 


(e)                                  any such amendment, waiver or consent to
any provision that relates to the Term A Loan Commitments and/or Term A Loans,
the Term B Loan Commitments and/or Term B Loans or the Revolving Commitments
and/or Revolving Loans but does not apply (or applies differently) to the other
Commitments and/or Loans, shall also require the consent of the Required Term A
Lenders, Required Term B Lenders or Required Revolving Lenders, respectively;


 


(f)                                    any such amendment, waiver or consent to
any provision that relates to the Dollar Revolving Commitments or Dollar
Revolving Loans, on the one hand, but not the Approved Currency Revolving
Commitments or Approved Currency Revolving Loans, on the other hand, or relates
to the Approved Currency Revolving Commitments or Approved Currency Revolving
Loans, on the one hand, but not the Dollar Revolving Commitments or Dollar
Revolving Loans, on the other hand, or applies differently to the Dollar
Revolving Commitments or Dollar Revolving Loans, on the one hand, and to the Approved
Currency Revolving Commitments or Approved Currency Revolving Loans, on the
other hand, shall also require the consent of the Required Dollar Revolving
Lenders or the Required Approved Currency Revolving Lenders, respectively;


 


(g)                                 unless also signed by the Required
Revolving Lenders, no such amendment, waiver or consent shall amend or waive (i) the
provisions of this Section 11.01(g), (ii) the definition of “Required
Revolving Lenders” or (iii) any condition precedent to any Credit
Extension (other than the initial Credit Extension) set forth in Section 5.03;


 


(h)                                 unless also signed by the Required Dollar
Revolving Lenders, no such amendment, waiver or consent shall amend or waive
the provisions of this Section 11.01(h) or the definition of “Required
Dollar Revolving Lenders”;


 


(i)                                     unless also signed by the Required
Approved Currency Revolving Lenders, no such amendment, waiver or consent shall
amend or waive the provisions of this Section 11.01(i) or the
definition of “Required Approved Currency Revolving Lenders”;


 


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


 


(k)                                  unless also consented to in writing by
the Swingline Lender, no such amendment, waiver or consent shall affect the
rights or duties of the Swingline Lender under this Credit Agreement;


 


(l)                                     unless also consented to in writing by
the Administrative Agent, no such amendment, waiver or consent shall affect the
rights or duties of the Administrative Agent under this Credit Agreement or any
other Credit Document; and


 


127














 


(m)          unless also consented to
in writing by the Collateral Agent, no such amendment, waiver or consent shall
affect the rights or duties of the Collateral Agent under this Credit Agreement
or any other Credit Document;


 


provided, however, that
notwithstanding anything to the contrary contained herein, (i) 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, (ii) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code of the
United States supersedes the unanimous consent provisions set forth herein, (iv) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding, (v) Section 11.06(h) 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 a SPC at the time of
such amendment, waiver or other modification, and (vi) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto.


 


Notwithstanding
anything to the contrary contained in this Section 11.01, (a) if
the Administrative Agent and the Borrower shall have jointly identified an
obvious error (including, but not limited to, an incorrect cross-reference) or
any error or omission of a technical nature, in each case, in any provision of
any Credit Document, then the Administrative Agent and/or the Collateral Agent
(acting in their sole discretion) and the Borrower or any other relevant Credit
Party shall be permitted to amend such provision or cure any ambiguity, defect
or inconsistency and such amendment shall become effective without any further
action or consent of any other party to any Credit Document, and (b) the
Borrower and the Administrative Agent and/or the Collateral Agent shall have
the right to amend any Credit Document without notice to or consent of any
other person to the extent described in the last paragraph of each of Sections
2.01(f) and (g) and in Section 1.08 or for the
purpose of ensuring the enforceability of any local law pledge agreement
entered into with respect to the Capital Stock of any Foreign Subsidiary.


 


11.02      Notices;
Effectiveness; Electronic Communication.


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)           THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE.”  THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE CREDIT PARTY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE CREDIT
PARTY MATERIALS OR THE PLATFORM.  In no
event shall the Administrative Agent, the Collateral Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability
to any Credit Party, Lender, L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of any Credit Party’s, the Collateral Agent’s or the
Administrative Agent’s transmission of Credit Party Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from


 


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the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Credit Party, Lender, L/C
Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).


 


(d)           Change of Address,
Etc.  Each of the Borrower, the
Administrative Agent, the L/C Issuer and the Swingline Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto.  Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the
Swingline Lender.  In addition, each
Lender agrees to notify the Administrative Agent from time to time to ensure
that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address
to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.


 


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


 


11.03      No Waiver; Cumulative Remedies; Enforcement.


 


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


 


Notwithstanding
anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit
Documents against the Credit Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Credit Documents, (b) the
L/C Issuer or the Swingline Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender,
as the case may


 


130

















 


be) hereunder and under the other Credit Documents, (c) any
Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.12), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Credit Party under any
Debtor Relief Law; and provided, further, that if at any time
there is no Person acting as Administrative Agent hereunder and under the other
Credit Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 9.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.12,
any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.


 


11.04      Expenses;
Indemnity; Damage Waiver.


 


(a)           Costs and Expenses.  The Borrower shall pay (i) all
reasonable documented out-of-pocket expenses incurred by the Administrative
Agent, the Collateral Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and the
Collateral Agent), in connection with the administration, syndication and
closing of the credit facilities provided for herein, the preparation, due
diligence, negotiation, execution, delivery and administration of this Credit
Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer), and
all fees and time charges for attorneys who may be employees of the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in
connection with this Credit Agreement and the other Credit Documents, including
its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


 


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


 


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


 


(c)           Reimbursement by
Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under subsections
(a) or (b) of this Section to be paid by it to the
Administrative Agent or the Collateral Agent, as the case may be, (or any
sub-agent thereof) the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent or the Collateral
Agent, as the case may be, (or any such sub-agent) the L/C Issuer or such
Related Party, as the case may be, (but, in each case, without affecting the
Borrower’s obligations with respect thereto) such Lender’s Aggregate Commitment
Percentage or, in the case of L/C Obligations, Dollar Revolving Commitment Percentage
(as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the
Collateral Agent, as the case may be, (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent or the Collateral Agent, as the case may
be, (or any such sub-agent) or L/C Issuer in connection with such
capacity.  The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.11(d).


 


(d)           Waiver of
Consequential Damages, Etc.  To the
fullest extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Credit Agreement, any other Credit Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Credit Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby.


 


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


 


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


 


11.05      Payments
Set Aside.


 


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


 


11.06      Successors
and Assigns.


 


(a)           Successors and Assigns
Generally.  The provisions of this
Credit Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that neither the Borrower nor any other Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender (other than in connection
with a transaction permitted by Section 8.04) and 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 subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Credit Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Credit Agreement.


 


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(b)           Assignments by
Lenders.  Any Lender may at any time
assign to one (1) or more Eligible Assignees all or a portion of its
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swingline Loans) at the time
owing to it); 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 with respect to a Lender, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than (A) in the case of Revolving Commitments and Revolving Loans,
$5.0 million, and (B) in the case each of the Term Loans, $1.0 million,
unless, in each case, each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed), it being understood
that assignments to a Lender or an Affiliate of a Lender or an Approved Fund
shall not be subject to such minimum amounts;


 


(ii)   each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Dollar Revolving Lender’s rights and obligations under this
Credit Agreement with respect to the Dollar Revolving Loans and the Dollar
Revolving Commitment assigned, except that this clause (ii) shall
not apply to rights in respect of Swingline Loans;


 


(iii)  each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Approved Currency Revolving Lender’s rights and obligations
under this Credit Agreement with respect to the Approved Currency Revolving
Loans and the Approved Currency Revolving Commitment assigned;


 


(iv)  each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Term Loan Lender’s rights and obligations under this Credit
Agreement with respect to the Term Loans or Term Loan Commitment assigned


 


(v)   any
assignment of (A) a Dollar Revolving Commitment and Dollar Revolving Loans
must be approved by the Administrative Agent, the L/C Issuer and the Swingline
Lender and, so long as no Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed); provided
that the Borrower’s approval shall not be required if the proposed assignee is
a Lender, an Affiliate of a Lender or an Approved Fund; (B) an Approved
Currency Revolving Commitment and Approved Currency Revolving


 


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Loans must be
approved by the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that the Borrower’s approval
shall not be required if the proposed assignee is a Lender, an Affiliate of a
Lender or an Approved Fund and (C) the Term Loans must be approved by the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that no approval shall be required if the proposed
assignee is a Lender, an Affiliate of a Lender or an Approved Fund; and


 


(vi)  the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall (A) deliver to the Administrative Agent an Administrative
Questionnaire and (B) deliver to the Borrower and the Administrative Agent
the forms required to be delivered pursuant to Section 3.01(e).


 


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


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations and the
interest thereon owing and paid 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, the Administrative Agent
and the Lenders 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
Credit Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by each of the Borrower and the L/C Issuer at any reasonable time
and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or substantive change to the Credit Documents is
pending, any Lender may request and receive from the Administrative Agent a
copy of the Register.


 


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Upon
its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Eligible Assignee, the Eligible Assignee’s completed
Administrative Questionnaire (unless the Eligible Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the Eligible Assignee
shall have failed to make any payment required to be made by it pursuant to Section 2.02(b),
2.03(c), 2.04(b), 2.11(b) or 11.04(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption
and record the information therein in the Register unless and until such
payment shall have been made in full, together with all accrued interest
thereon.  No assignment shall be effective
for purposes of this Credit Agreement unless it has been recorded in the
Register as provided in this paragraph.


 


(d)           Participations.  Any  Lender  may  at  any  time,  without  the  consent  of,  or  notice  to,  the  Borrower  or  the  Administrative  Agent,  sell  participations  to  any  Person  (other  than  a  natural  person  or  the  Borrower  or  any  of  the  Borrower’s  Affiliates  or  Subsidiaries)  (each,  a  “Participant”)  in  all  or  a  portion  of  such  Lender’s  rights  and/or  obligations  under  this  Credit  Agreement  (including  all  or  a  portion  of  its  Commitment  and/or  the  Loans  (including  such  Lender’s  participations  in  L/C  Obligations  and/or  Swingline  Loans)  owing  to  it); provided  that  (i)  such  Lender’s  obligations  under  this  Credit  Agreement  shall  remain  unchanged,  (ii)  such  Lender  shall  remain  solely  responsible  to  the  other  parties  hereto  for  the  performance  of  such  obligations  and  (iii)  the  Borrower,  the  Administrative  Agent,  the  Lenders  and  the  L/C  Issuer  shall  continue  to  deal  solely  and  directly  with  such  Lender  in  connection  with  such  Lender’s  rights  and  obligations  under  this  Credit  Agreement.  Each  Lender,  acting  solely  for  this  purpose  as  a  non-fiduciary  agent  of  the  Borrower,  shall  maintain  a  register  for  the  recordation  of  the  names  and  addresses  of  such  Participants  and  the  rights,  interests  or  obligations  of  such  Participants  in  any  Obligation,  in  any  Commitment  and  in  any  right  to  receive  any  principal,  interest  and  other  payments  thereunder  (the  “Participant  Register”).  The  entries  in  the  Participant  Register  shall  be  conclusive  absent  manifest  error  and  such  Lender  shall  treat  each  person  whose  name  is  recorded  in  the  Participant  Register  as  the  owner  of  such  participation  for  all  purposes  of  this  Credit  Agreement  notwithstanding  any  notice  to  the  contrary.


 


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
Credit Agreement and to approve any amendment, modification or waiver of
any  provision of this Credit Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in Section 11.01(a)(iv) or (v) or,
to the extent the Participant is affected thereby, Section 11.01(b)(i),
(ii) or (iii). 
Subject to subsection (e) of this Section, each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender, provided such Participant agrees to be subject
to Section 2.12 as though it were a Lender.


 


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(e)           Limitation upon
Participant Rights.  A Participant
shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent, not to be unreasonably withheld or delayed (it being agreed, without
limitation, that it will be reasonable for the Borrower to withhold consent if
giving consent would result in increased indemnification obligations at the
time the participation takes effect or would be reasonably certain to result in
increased indemnification obligations thereafter as a result of a Change in Law
announced prior to the time the participation takes effect), provided that the
Participant agrees to be subject to the provisions of Sections 3.06(a) and
11.13(a) as if it were a Lender. 
For the avoidance of doubt, a Participant entitled to benefits under Section 3.01,
3.04 or 3.05 shall be subject to all of the limitations and
requirements of such Sections as if it were a Lender (including, in the case of
Section 3.01, all of the limitations in the definition of Excluded
Taxes).


 


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


 


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


 


(h)           Special Purpose
Funding Vehicles.  Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the
Borrower (an “SPC”) the option to provide all or any part of any Loan
that such Granting Lender would otherwise be obligated to make pursuant to this
Credit Agreement; provided that (i) nothing herein shall constitute
a commitment by any SPC to fund any Loan, and (ii) if a 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 or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.11(b)(i).  Each party hereto hereby agrees that (i) 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 Credit Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Credit Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Credit
Document, remain the lender of record hereunder.  The making of a Loan by a SPC hereunder shall
utilize the Commitment of the Granting Lender to the same


 


137

















 


extent, and as if, such Loan
were made by such Granting Lender.  In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Credit Agreement) that, prior to the date
that is one (1) year and one (1) day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceeding under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Loan to the Granting Lender and (ii) 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.  Each SPC shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Granting Lender and had acquired its interest by assignment pursuant to Section 11.06(b).  A SPC shall not be entitled to receive any
greater payment under Section 3.01, 3.04 or 3.05 than
the applicable Granting Lender would have been entitled to receive with respect
to the interest granted to such SPC unless the grant of the interest is made
with the Borrower’s prior written consent, not to be unreasonably withheld or
delayed (it being agreed, without limitation, that it will be reasonable for
the Borrower to withhold consent if giving consent would result in increased
indemnification obligations at the time the grant to the SPC takes effect or
would be reasonably certain to result in increased indemnification obligations
thereafter as a result of a Change in Law announced prior to the time the grant
to the SPC takes effect), provided that the SPC agrees to be subject to
the provisions of Sections 3.06(a) and 11.13(a) as if
it were a Granting Lender.  For the
avoidance of doubt, an SPC entitled to benefits under Section 3.01,
3.04 or 3.05 shall be subject to all of the limitations and
requirements of such Sections as if it were a Granting Lender (including, in
the case of Section 3.01, all of the limitations in the definition
of Excluded Taxes).


 


(i)            Resignation as L/C
Issuer or Swingline Lender After Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time any L/C Issuer or Swingline Lender assigns all
of its Commitment and Loans pursuant to subsection (b) above, such
L/C Issuer or Swingline Lender may, (i) upon thirty (30) days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty
(30) days’ notice to the Borrower, resign as Swingline Lender.  In the event of any such resignation as L/C Issuer
or Swingline Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swingline Lender hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of such L/C Issuer or Swingline Lender as L/C Issuer or Swingline
Lender, as the case may be.  If any L/C
Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges
and duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the
Lenders to fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If any Swingline Lender resigns as Swingline
Lender, it shall retain all the rights of the Swingline Lender provided for hereunder
with respect to Swingline 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 Swingline Loans pursuant
to Section 2.04(b).  Upon the
appointment of a successor L/C Issuer and/or Swingline Lender, (a) such
successor shall succeed to and become vested with


 


138

















 


all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swingline Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the retiring
L/C Issuer to effectively assume the obligations of the retiring L/C Issuer
with respect to such Letters of Credit.


 


11.07      Treatment
of Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors
and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to
any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Credit Document or any action or proceeding
relating to this Credit Agreement or any other Credit Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Credit Agreement, (ii) any
actual or prospective counterparty (or advisors) to any swap, derivative
transaction relating to the Borrower and its obligations, (g) subject to
each such Person being informed of the confidential nature of the Information
and to their agreement to keep such Information confidential, to (i) an
investor or prospective investor in securities issued by an Approved Fund that
also agrees that Information shall be used solely for the purpose of evaluating
an investment in such securities issued by the Approved Fund, (ii)  a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in securities issued by an Approved Fund in connection with the
administration, servicing and reporting on the assets serving as collateral for
securities issued by an Approved Fund, or (iii)  a nationally recognized
rating agency that requires access to information regarding the Credit Parties,
the Loans and Credit Documents in connection with ratings issued in respect of
securities issued by an Approved Fund, (h) with the consent of the
Borrower or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


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


 


139

















 


to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.


 


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


 


11.08      Right
of Setoff.


 


If an
Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Credit Party against any and all of the obligations of such
Borrower or such Credit Party now or hereafter existing under this Credit
Agreement or any other Credit Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made
any demand under this Credit Agreement or any other Credit Document and
although such obligations of such Borrower or such Credit Party may be
contingent or unmatured or are owed to a branch or office of such Lender or the
L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness.  The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are
in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


11.09      Interest
Rate Limitation.


 


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


 


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11.10      Counterparts;
Integration; Effectiveness.


 


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


 


11.11      Survival
of Representations and Warranties.


 


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


 


11.12      Severability.


 


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


 


11.13      Replacement
of Lenders.


 


(a)           If any Lender requests
compensation under Section 3.04, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by,


 


141

















 


Section 11.06),
all of its interests, rights and obligations under this Credit Agreement and
the related Credit Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


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


 


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


 


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


 


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


 


(v)      such assignment is recorded in the Register.


 


A
Lender that has assigned its interests, rights and obligations under this
Credit Agreement and the related Credit Documents pursuant to this Section 11.13(a) shall
continue to be entitled to the benefits of Sections 3.01, 3.04
and 3.06 with respect to the periods during which such Person was a
Lender.


 


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


 


(b)           If, in connection with
any proposed amendment, change, waiver, discharge or termination of any of the
provisions of this Credit Agreement or any other Credit Document as
contemplated by Section 11.01, the consent of the Required Lenders
(or Required Approved Currency Revolving Lenders, Required Dollar Revolving Lenders,
Required Term A Lenders or Required Term B Lenders, as the case may be) is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained (any such Lender whose consent is not obtained as
described in this clause (b) being referred to as a “Non-Consenting
Lender”), then, at the Borrower’s request, any Eligible Assignee reasonably
acceptable to the Administrative Agent shall have the right to purchase from
such Non-Consenting Lender, and such Non-Consenting Lender agrees that it
shall, upon the Administrative Agent’s request, sell and assign to such Eligible
Assignee, all of the Commitments and Loans of such Non-Consenting Lender for an
amount equal to the principal balance of all Loans and L/C Advances held by the
Non-Consenting Lender and all accrued and unpaid interest and fees with respect
thereto and all other amounts payable to it hereunder through the date of sale
and payment by the Borrower to the Administrative Agent of the assignment fee
under Section 11.06(b); provided, however, that such
purchase and sale shall not be effective until (x) the Administrative
Agent shall have


 


142

















 


received from such Eligible
Assignee an agreement in form and substance satisfactory to the Administrative
Agent and the Borrower whereby such Eligible Assignee shall agree to be bound
by the terms hereof and (y) such Non-Consenting Lender shall have received
payments of all Loans held by it and all accrued and unpaid interest and fees
with respect thereto and all other amounts payable to it hereunder through the
date of the sale.  Each Lender agrees
that, if it becomes a Non-Consenting Lender, it shall execute and deliver to
the Administrative Agent an Assignment and Assumption to evidence such sale and
purchase and shall deliver to the Administrative Agent any Note (if the
assigning Lender’s Loans are evidenced by a Note) subject to such Assignment
and Assumption; provided, however, that the failure of any
Non-Consenting Lender to execute an Assignment and Assumption shall not render
such sale and purchase (and the corresponding assignment) invalid.


 


11.14      Governing
Law; Jurisdiction; Etc.


 


(a)           GOVERNING LAW.  THIS CREDIT AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


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


 


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


 


143

















 


PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


 


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


 


11.15      Waiver
of Jury Trial.


 


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


 


11.16      USA
PATRIOT Act Notice.


 


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


 


11.17      Designation
as Senior Debt.


 


All
Obligations shall be “Designated Senior Indebtedness” (or such similar defined
term) for purposes of all documentation governing Subordinated Debt.


 


11.18      No
Advisory or Fiduciary Responsibility.


 


In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Credit Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (i) (A) the arranging and other services regarding this Credit
Agreement provided by the Agents and
the Lead Arrangers are arm’s-length commercial transactions between the
Borrower and its Affiliates, on
the one hand, and the Agents and the
other Lead Arrangers, on the other


 


144

















 


hand, (B) the Borrower  has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Credit Documents; (ii) (A) each Agent and Lead Arranger is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for the
Borrower or any of its
Affiliates, or any other Person and (B) no Agent or Lead Arranger has any obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Credit Documents; and (iii) the Agents and the Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower  and its Affiliates, and no Agent or any Lead Arranger has any obligation to disclose any of such
interests to the Borrower or its  Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against any Agent or Lead Arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


145














 


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


 


 


	
  BORROWER:

  	
   

  
	
   

  	
  TICKETMASTER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory R. Blatt

  
	
   

  	
   

  	
  Name: Gregory R. Blatt

  
	
   

  	
   

  	
  Title: Vice President
  and Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  ADMINISTRATIVE AGENT:

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent
  and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter B. Thauer

  
	
   

  	
   

  	
  Name: Peter B. Thauer

  
	
   

  	
   

  	
  Title: Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  Lenders:

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Swingline Lender, as
  an L/C Issuer

  
	
   

  	
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter B. Thauer

  
	
   

  	
   

  	
  Name: Peter B. Thauer

  
	
   

  	
   

  	
  Title: Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH BANK USA, as
  a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  
	
   

  	
   

  	
  Name: Louis Alder

  
	
   

  	
   

  	
  Title: First Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay D. Marquis

  	
   

  
	
   

  	
   

  	
  Name: Jay D. Marquis

  
	
   

  	
   

  	
  Title: Vice President

  



 


146

















 


	
   

  	
  BARCLAYS
  BANK PLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Barton

  
	
   

  	
   

  	
  Name: David Barton

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Fossati

  
	
   

  	
   

  	
  Name: Paul Fossati

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION, as
  an L/C Issuer and as

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc A. Birenbaum

  
	
   

  	
   

  	
  Name: Marc A. Birenbaum

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC,
  as a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew Wynn

  
	
   

  	
   

  	
  Name: Andrew Wynn

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA, N.A., as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven F. Larsen

  
	
   

  	
   

  	
  Name: Steven F. Larsen

  
	
   

  	
   

  	
  Title: First Vice
  President

  



 


147

















 


	
   

  	
  MIZUHO CORPORATE BANK, LTD., as
  a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bertram H. Tang

  
	
   

  	
   

  	
  Name: Bertram H. Tang

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUMITOMO MITSUI BANKING

  
	
   

  	
  CORPORATION, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leo E. Pagarigan

  
	
   

  	
   

  	
  Name: Leo E. Pagarigan

  
	
   

  	
   

  	
  Title: General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brenda S. Insull

  
	
   

  	
   

  	
  Name: Brenda S. Insull

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,
  as a

  
	
   

  	
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cary Moore

  
	
   

  	
   

  	
  Name: Cary Moore

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF TOKYO-MITSUBISHI UFJ
  TRUST

  
	
   

  	
  COMPANY, as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles Stewart

  
	
   

  	
   

  	
  Name: Charles Stewart

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DZ BANK AG Deutsche Zentral-

  
	
   

  	
  Genossenschaftsbank, Frankfurt
  am Main,

  
	
   

  	
  New York Branch, as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cedric Probst

  
	
   

  	
   

  	
  Name: Cedric Probst

  
	
   

  	
   

  	
  Title: Vice President

  



 


148

















 


	
   

  	
  By:

  	
  /s/ Oliver Hildenbrand

  
	
   

  	
   

  	
  Name: Oliver
  Hildenbrand

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST COMMERCIAL BANK, Los

  
	
   

  	
  Angeles Branch, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Larry Jen-Yu Lai

  
	
   

  	
   

  	
  Name: Larry Jen-Yu Lai

  
	
   

  	
   

  	
  Title: SAVP &
  Deputy General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATE BANK OF INDIA, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Prabodh Parikh

  
	
   

  	
   

  	
  Name: Prabodh Parikh

  
	
   

  	
   

  	
  Title: Vice
  President & Head Credit

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CATHAY UNITED BANK, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Grace Chou

  
	
   

  	
   

  	
  Name: Grace Chou

  
	
   

  	
   

  	
  Title: SVP &
  General Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF COMMUNICATIONS CO.,
  LTD.,

  
	
   

  	
  New York Branch, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shelley He

  
	
   

  	
   

  	
  Name: Shelley He

  
	
   

  	
   

  	
  Title: Deputy General
  Manager

  



 


149