Exhibit
10.1


EXECUTION COPY




 





 





 


CREDIT AGREEMENT






dated as of






September 26, 2007






among






PRICELINE.COM INCORPORATED






The Lenders Party Hereto






RBS CITIZENS, NATIONAL ASSOCIATION and BANK OF SCOTLAND plc

as Co-Documentation Agents






BANK OF AMERICA, N.A.

as Syndication Agent






and


 


 


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent


 











J.P. MORGAN SECURITIES INC.
and BANC OF AMERICA SECURITIES LLC

as Joint Bookrunners and Joint Lead Arrangers




 




















 


TABLE OF CONTENTS


 


	
                                                                                          ARTICLE I Definitions

  
	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 1.01.      Defined Terms

  	
  1

  
	
  SECTION 1.02.      Classification of Loans and Borrowings

  	
  20

  
	
  SECTION 1.03.      Terms Generally

  	
  20

  
	
  SECTION 1.04.      Accounting Terms; GAAP

  	
  21

  
	
  SECTION 1.05.      Currency Equivalents Generally

  	
  21

  
	
   

  	
   

  
	
  ARTICLE II The Credits

  	
  21

  
	
   

  	
   

  
	
  SECTION 2.01.      Commitments

  	
  21

  
	
  SECTION 2.02.      Loans and Borrowings

  	
  21

  
	
  SECTION 2.03.      Requests for Revolving Borrowings

  	
  22

  
	
  SECTION 2.04.      Determination of Dollar Amounts

  	
  23

  
	
  SECTION 2.05.      Swingline Loans

  	
  23

  
	
  SECTION 2.06.      Letters of Credit

  	
  24

  
	
  SECTION 2.07.      Funding of Borrowings

  	
  28

  
	
  SECTION 2.08.      Interest Elections

  	
  29

  
	
  SECTION 2.09.      Termination and Reduction of Commitments

  	
  30

  
	
  SECTION 2.10.      Repayment of Loans; Evidence of Debt

  	
  30

  
	
  SECTION 2.11.      Prepayment of Loans

  	
  31

  
	
  SECTION 2.12.      Fees

  	
  32

  
	
  SECTION 2.13.      Interest

  	
  33

  
	
  SECTION 2.14.      Alternate Rate of Interest

  	
  33

  
	
  SECTION 2.15.      Increased Costs

  	
  34

  
	
  SECTION 2.16.      Break Funding Payments

  	
  35

  
	
  SECTION 2.17.      Taxes

  	
  35

  
	
  SECTION 2.18.      Payments
  Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Set-offs

  	
  37

  
	
  SECTION 2.19.      Mitigation Obligations; Replacement of Lenders

  	
  39

  
	
  SECTION 2.20.      Expansion Option

  	
  40

  
	
  SECTION 2.21.      Market Disruption

  	
  41

  
	
  SECTION 2.22.      Judgment Currency

  	
  41

  
	
  SECTION 2.23.      Senior Debt

  	
  42

  
	
   

  	
   

  
	
  ARTICLE III Representations and
  Warranties

  	
  42

  
	
   

  	
   

  
	
  SECTION 3.01.      Organization; Powers; Subsidiaries

  	
  42

  
	
  SECTION 3.02.      Authorization; Enforceability

  	
  42

  
	
  SECTION 3.03.      Governmental Approvals; No Conflicts

  	
  42

  
	
  SECTION 3.04.      Financial Condition; No Material Adverse Change

  	
  43

  
	
  SECTION 3.05.      Properties

  	
  43

  
	
  SECTION 3.06.      Litigation and Environmental Matters

  	
  43

  



 


 

















 


Table of Contents


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 3.07.      Compliance with Laws

  	
  44

  
	
  SECTION 3.08.      Investment Company Status

  	
  44

  
	
  SECTION 3.09.      Taxes

  	
  44

  
	
  SECTION 3.10.      ERISA

  	
  44

  
	
  SECTION 3.11.      Disclosure

  	
  44

  
	
  SECTION 3.12.      Federal Reserve Regulations

  	
  44

  
	
  SECTION 3.13.      Liens

  	
  44

  
	
  SECTION 3.14.      No Default

  	
  44

  
	
  SECTION 3.15.      No Burdensome Restrictions

  	
  44

  
	
  SECTION 3.16.      Insurance

  	
  44

  
	
  SECTION 3.17.      Security Interest in Collateral

  	
  45

  
	
   

  	
   

  
	
  ARTICLE IV Conditions

  	
  45

  
	
   

  	
   

  
	
  SECTION 4.01.      Effective Date

  	
  45

  
	
  SECTION 4.02.      Each Credit Event

  	
  46

  
	
   

  	
   

  
	
  ARTICLE V Affirmative Covenants

  	
  47

  
	
   

  	
   

  
	
  SECTION 5.01.      Financial Statements and Other Information

  	
  47

  
	
  SECTION 5.02.      Notices of Material Events

  	
  48

  
	
  SECTION 5.03.      Existence; Conduct of Business

  	
  48

  
	
  SECTION 5.04.      Payment of Tax Obligations

  	
  48

  
	
  SECTION 5.05.      Maintenance of Properties; Insurance

  	
  48

  
	
  SECTION 5.06.      Books and Records; Inspection Rights

  	
  49

  
	
  SECTION 5.07.      Compliance with Laws

  	
  49

  
	
  SECTION 5.08.      Use of Proceeds

  	
  49

  
	
  SECTION 5.09.      Subsidiary Guarantors; Pledges; Additional
  Collateral; Further Assurances

  	
  49

  
	
   

  	
   

  
	
  ARTICLE VI Negative Covenants

  	
  50

  
	
   

  	
   

  
	
  SECTION 6.01.      Indebtedness

  	
  51

  
	
  SECTION 6.02.      Liens

  	
  52

  
	
  SECTION 6.03.      Fundamental Changes and Asset Sales

  	
  53

  
	
  SECTION 6.04.      Investments, Loans, Advances, Guarantees and
  Acquisitions

  	
  54

  
	
  SECTION 6.05.      Swap Agreements

  	
  55

  
	
  SECTION 6.06.      Transactions with Affiliates

  	
  55

  
	
  SECTION 6.07.      Restricted Payments

  	
  55

  
	
  SECTION 6.08.      Restrictive Agreements

  	
  55

  
	
  SECTION 6.09.      Sale and Leaseback Transactions

  	
  56

  
	
  SECTION 6.10.      Financial Covenants

  	
  56

  



 


 


ii

















 


Table of Contents


(continued)


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE VII Events of Default

  	
  56

  
	
   

  	
   

  
	
  ARTICLE VIII The Administrative
  Agent

  	
  59

  
	
   

  	
   

  
	
  ARTICLE IX Miscellaneous

  	
  62

  
	
   

  	
   

  
	
  SECTION 9.01.      Notices

  	
  62

  
	
  SECTION 9.02.      Waivers; Amendments

  	
  63

  
	
  SECTION 9.03.      Expenses; Indemnity; Damage Waiver

  	
  65

  
	
  SECTION 9.04.      Successors and Assigns

  	
  66

  
	
  SECTION 9.05.      Survival

  	
  68

  
	
  SECTION 9.06.      Counterparts; Integration; Effectiveness

  	
  69

  
	
  SECTION 9.07.      Severability

  	
  69

  
	
  SECTION 9.08.      Right of Setoff

  	
  69

  
	
  SECTION 9.09.      Governing Law; Jurisdiction; Consent to Service of
  Process

  	
  69

  
	
  SECTION 9.10.      WAIVER OF JURY TRIAL

  	
  70

  
	
  SECTION 9.11.      Headings

  	
  70

  
	
  SECTION 9.12.      Confidentiality

  	
  70

  
	
  SECTION 9.13.      USA PATRIOT Act

  	
  71

  
	
  SECTION 9.14.      Appointment for Perfection

  	
  71

  



 


 


iii

















 


Table of Contents


(continued)


 


	
   

  	
  Page

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule 2.01 – Commitments

  	
   

  
	
  Schedule 2.02 – Mandatory Cost

  	
   

  
	
  Schedule 3.01 – Subsidiaries

  	
   

  
	
  Schedule 3.06 – Disclosed Matters

  	
   

  
	
  Schedule 6.01 – Existing Indebtedness

  	
   

  
	
  Schedule 6.02 – Existing Liens

  	
   

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A – Form of Assignment and
  Assumption

  	
   

  
	
  Exhibit B-1 – Form of Opinion of Loan
  Parties’ Special Counsel

  	
   

  
	
  Exhibit B-2 – Form of Opinion of
  Borrower’s General Counsel

  	
   

  
	
  Exhibit C – Form of Increasing Lender
  Supplement

  	
   

  
	
  Exhibit D – Form of Augmenting Lender
  Supplement

  	
   

  
	
  Exhibit E – List of Closing Documents

  	
   

  
	
  Exhibit F – Form of Non-Bank
  Certificate

  	
   

  
	
   

  	
   

  



 


 


iv
















 


CREDIT AGREEMENT (this “Agreement”)
dated as of September 26, 2007 among PRICELINE.COM INCORPORATED (the “Borrower”),
the LENDERS from time to time party hereto, RBS CITIZENS, NATIONAL ASSOCIATION
and BANK OF SCOTLAND plc, as Co-Documentation Agents, BANK OF AMERICA, N.A., as
Syndication Agent and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent.


The parties hereto agree as
follows:


ARTICLE I


Definitions


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


“ABR”, when used in reference to
any Loan or Borrowing, refers to a Loan, or the Loans comprising such
Borrowing, bearing interest at a rate determined by reference to the Alternate
Base Rate.


“Acquisition” means
any acquisition of property or series of related acquisitions of property that
(a) constitutes (i) assets comprising all or substantially all or any
significant portion of a business or operating unit of a business, or (ii) all
or substantially all of the common stock or other Equity Interests of a Person.


“Adjusted Covenant
Requirement” means, with respect to the incurrence of any Indebtedness and
the making of any Acquisition, investment or Restricted Payment, the
Consolidated Net Leverage Ratio shall not exceed, at the time thereof and after
giving effect thereto (on a pro forma basis), a ratio equal to (x) the
numerator of the maximum Leverage Ratio permitted under Section 6.10(a) at such
time minus 0.75 to (y) 1.0.


“Adjusted LIBO Rate” means, with
respect to any Eurocurrency Borrowing for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
sum of (i) (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate plus, without duplication, (ii) in the case of Loans by
a Lender from its office or branch in the United Kingdom, the Mandatory Cost.


“Administrative Agent” means
JPMorgan Chase Bank, National Association (including its branches and
affiliates), in its capacity as administrative agent for the Lenders hereunder.


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


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


“Aggregate Commitment”
means the aggregate of the Commitments of all of the Lenders, as reduced or
increased from time to time pursuant to the terms and conditions hereof.  As of the Effective Date, the Aggregate
Commitment is $175,000,000.


 

















 


“Agreed Currencies”
means (i) Dollars, (ii) euro, (iii) Pounds Sterling and (iv) any other Foreign
Currency agreed to by the Administrative Agent and each of the Lenders.


“Alternate Base Rate” means, for
any day, a rate per annum equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day plus
1⁄2 of 1%.  Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.


“Applicable Percentage” means,
with respect to any Lender, the percentage of the Aggregate Commitment
represented by such Lender’s Commitment. 
If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.


“Applicable Pledge
Percentage” means 100%, but 65% in the case of a pledge of Equity Interests
of a Foreign Subsidiary to the extent a 100% pledge would cause a Deemed
Dividend Problem.


“Applicable Rate” means, for any
day, with respect to any Eurocurrency Revolving Loan, ABR Revolving Loan or
with respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “Commitment Fee
Rate”, “Eurocurrency Spread” or “ABR Spread”, as the case may be, based upon
the Leverage Ratio applicable on such date:




	
   

  	
   

  	
  Leverage
  Ratio:

  	
   

  	
  Commitment
  Fee

  Rate

  	
   

  	
  Eurocurrency

  Spread

  	
   

  	
  ABR
  Spread

  	
   

  
	
  

  Category 1:

   

  	
   

  	
  < 1.00 to 1.00

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  
	
  Category 2:

  	
   

  	
  > 1.00 to 1.00 but

  < 2.00 to 1.00

  	
   

  	
  0.30

  	
  %

  	
  1.375

  	
  %

  	
  0.375

  	
  %

  
	
  Category 3:

  	
   

  	
  > 2.00 to 1.00 but 

  < 3.00 to 1.00

  	
   

  	
  0.30

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  Category 4:

  	
   

  	
  > 3.00 to 1.00 but

  < 4.00 to 1.00

  	
   

  	
  0.375

  	
  %

  	
  1.625

  	
  %

  	
  0.625

  	
  %

  
	
  

  Category 5:



  	
   

  	
  > 4.00 to 1.00

  	
   

  	
  0.375

  	
  %

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  






 


For
purposes of the foregoing,


(i)
if at any time the Borrower fails to deliver the Financials on or before the
date the Financials are due pursuant to Section 5.01, Category 5 shall be
deemed applicable for the period commencing three (3) Business Days after the
required date of delivery and ending on the date which is three (3) Business
Days after the Financials are actually delivered, after which the Category
shall be determined in accordance with the table above as applicable;


(ii)
adjustments, if any, to the Category then in effect shall be effective three
(3) Business Days after the Administrative Agent has received the applicable
Financials (it being understood and agreed that each change in Category shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change); and


(iii)
notwithstanding the foregoing, Category 5 shall be deemed to be applicable
until the Administrative Agent’s receipt of the applicable Financials for the
Borrower’s second fiscal 


 


2

















 


quarter
ending after the Effective Date and adjustments to the Category then in effect
shall thereafter be effected in accordance with the preceding paragraphs.


“Approved Fund” has the meaning
assigned to such term in Section 9.04.


“Approximate Equivalent
Amount” of any currency with respect to any amount of Dollars shall mean
the Equivalent Amount of such currency with respect to such amount of Dollars
on or as of such date, rounded up to the nearest amount of such currency as
determined by the Administrative Agent from time to time.


“Assignment and Assumption”
means an assignment and assumption agreement entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form approved by the Administrative Agent.


“Augmenting Lender”
has the meaning assigned to such term in Section 2.20.


“Availability
Period” means the period from and including the Effective Date to
but excluding the earlier of the Maturity Date and the date of termination of
the Commitments in accordance with the terms of this Agreement.


“Available Commitment”
means, at any time, the Commitment then in effect minus the Revolving
Credit Exposure of all Lenders at such time; it being understood and agreed
that any Lender’s Swingline Exposure shall not be deemed to be a component of
the Revolving Credit Exposure for purposes of calculating the commitment fee
under Section 2.12(a).


“Banking Services”
means each and any of the following bank services provided to the Borrower or
any Subsidiary by any Lender or any of its Affiliates: (a) commercial credit
cards, (b) stored value cards and (c) treasury management services (including,
without limitation, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository network
services).


“Banking Services
Agreement” means any agreement entered into by the Borrower or any
Subsidiary in connection with Banking Services.


“Banking Services
Obligations” means any and all obligations of the Borrower or any
Subsidiary, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Banking
Services.


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


“Borrower”
means priceline.com Incorporated, a Delaware corporation.


“Borrowing”
means (a) Revolving Loans of the same Type, made, converted or continued on the
same date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect or (b) a Swingline Loan.


“Borrowing
Request” means a request by the Borrower for a Revolving Borrowing
in accordance with Section 2.03.


3

















 


“Burdensome Restrictions”
means any consensual encumbrance or restriction of the type described in clause
(a) or (b) of Section 6.08 (without giving effect to any exceptions described
in clauses (i) through (iv) of such Section 6.08).


“Business
Day” means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a
Eurocurrency Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Agreed
Currencies in the London interbank market or the principal financial center of
the country in which payment or purchase of such Agreed Currency can be made
(and, if the Borrowings or LC Disbursements which are the subject of a
borrowing, drawing, payment, reimbursement or rate selection are denominated in
euro, the term “Business Day” shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in euro).


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


“Capital
Lease Obligations” of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.


“Change
in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) the occurrence of a change in control, or other similar provision, as
defined in any agreement or instrument evidencing any Material Indebtedness
(triggering a default or mandatory prepayment, which default or mandatory
prepayment has not been waived in writing).


“Change
in Law” means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or
by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.


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


“Co-Documentation Agent”
means each of RBS Citizens, National Association and Bank of Scotland plc in
its capacity as co-documentation agent for the credit facility evidenced by
this Agreement.


4

















 


“Collateral” means
any and all property owned, leased or operated by a Person covered by the
Collateral Documents and any and all other property of any Loan Party, now
existing or hereafter acquired, that may at any time be or become subject to a
security interest or Lien in favor of Administrative Agent, on behalf of itself
and the Holders of Secured Obligations, to secure the Secured Obligations.


“Collateral Documents”
means, collectively, the Security Agreement, the Mortgages and all other
agreements, instruments and documents executed in connection with this
Agreement that are intended to create or evidence Liens to secure the Secured
Obligations, including, without limitation, all other security agreements,
pledge agreements, mortgages, and deeds of trust whether heretofore, now, or
hereafter executed by the Borrower or any of its Subsidiaries and delivered to
the Administrative Agent.


“Commitment”
means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced or terminated from time to time pursuant to
Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.  The
initial amount of each Lender’s Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable.


“Computation Date” is
defined in Section 2.04.


“Consolidated
EBITDA” means Consolidated Net Income plus, to the extent deducted from revenues in determining
Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for
income taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
extraordinary non-cash charges, expenses and losses incurred other than in the
ordinary course of business, (vi) non-cash expenses related to stock-based
compensation, (vii) cash expenses associated with the settlement of securities
litigation to the extent such settlement has been effected prior to the
Effective Date and the aggregate amount of such expenses does not exceed
$56,000,000, (viii) other non-cash charges and expenses, including, without
limitation, any non-cash expense relating to the vesting of warrants and (ix)
cost savings consistent with the standards set forth in Rule 11-02(b)(6) of
Regulation S-X, minus, to
the extent included in Consolidated Net Income, (1) interest income (net of
fees and expenses associated for closed-end funds, mutual funds and exchange
traded funds), (2) income and airline excise tax credits and refunds (to the
extent not netted from tax expense), (3) any cash payments made during such
period in respect of items described in clauses (vi) or (viii) above subsequent
to the fiscal quarter in which the relevant non-cash, charge expense or losses
were incurred and (4) extraordinary non-cash gains realized other than in the
ordinary course of business, all calculated for the Borrower and its
Subsidiaries in accordance with GAAP on a consolidated basis.  For the purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters (each, a “Reference
Period”), (i) if at any time during such Reference Period the Borrower or
any Subsidiary shall have made any Material Disposition, the Consolidated
EBITDA for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by
an amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such Reference Period, and (ii) if during such Reference Period the
Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated
EBITDA for such Reference Period shall be calculated after giving effect
thereto on a Pro Forma Basis as if such Material Acquisition occurred on the first
day of such Reference Period.  As used in
this definition, “Material Acquisition” means any Acquisition with
respect to which the Borrower is required to present pro forma financial
statements in accordance with Regulation S-X; and “Material Disposition”
means any sale, transfer or disposition of property or series 


5

















 


of
related sales, transfers, or dispositions of property with respect to which the
Borrower is required to present pro forma financial statements in accordance
with Regulation S-X.


“Consolidated
Interest Expense” means, with reference to any period, the interest
expense (including without limitation interest expense under Capital Lease
Obligations that is treated as interest in accordance with GAAP) of the
Borrower and its Subsidiaries calculated on a consolidated basis for such
period with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries allocable to such period in accordance with GAAP (including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers acceptance financing and net
costs under interest rate Swap Agreements to the extent such net costs are
allocable to such period in accordance with GAAP).


“Consolidated
Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated in accordance with GAAP
on a consolidated basis (without duplication) for such period.


“Consolidated Net
Leverage Ratio” means the ratio, determined as of each date upon which the
Adjusted Covenant Requirement is to be tested, of (i) Consolidated Total
Indebtedness minus the aggregate principal amount of unrestricted cash and
Permitted Investments to (ii) Consolidated EBITDA for the period of the then
most recently ended four consecutive fiscal quarters.


“Consolidated Tangible
Assets” means, as of the date of any determination thereof, Consolidated
Total Assets minus all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other intangible assets of the Borrower and its
Subsidiaries, calculated in accordance with GAAP on a consolidated basis as of
such date.


“Consolidated
Total Assets” means, as of the date of any determination thereof, total
assets of the Borrower and its Subsidiaries calculated in accordance with GAAP
on a consolidated basis as of such date.


“Consolidated
Total Indebtedness” means at any time (a) the sum, without
duplication, of (i) the aggregate Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time in accordance
with GAAP, (ii) the aggregate amount of Indebtedness of the Borrower and its
Subsidiaries relating to bankers acceptances and (iii) Indebtedness of the type
referred to in clauses (i) or (ii) hereof of another Person guaranteed by the
Borrower or any of its Subsidiaries minus (b) the aggregate Indebtedness
of the Borrower and its Subsidiaries which has been defeased in accordance with
applicable agreements, laws, rules and regulations and/or accounting standards.


“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.


“Country Risk Event”  means:


 


(i)            any
law, action or failure to act by any Governmental Authority in the Borrower’s
or Letter of Credit beneficiary’s country which has the effect of:


 


(a)           changing the
obligations under the relevant Letter of Credit, this Agreement or any of the
other Loan Documents as originally agreed or otherwise creating any additional
liability, cost or expense to the Issuing Bank, the Lenders or the Administrative
Agent,


 


6

















 


(b)           changing the
ownership or control by the Borrower or Letter of Credit beneficiary of its
business, or


 


(c)           preventing or
restricting the conversion into or transfer of the applicable Agreed Currency;


 


(ii)           force
majeure; or


 


(iii)          any similar event


which, in relation to (i),
(ii) and (iii), directly or indirectly, prevents or restricts the payment or
transfer of any amounts owing under the relevant Letter of Credit in the
applicable Agreed Currency into an account designated by the Administrative
Agent or the Issuing Bank and freely available to the Administrative Agent or
the Issuing Bank.


“Coverage Ratio” has
the meaning assigned to such term in Section 6.10(b).


“Credit Event” means a
Borrowing, the issuance of a Letter of Credit, an LC Disbursement or any of the
foregoing.


“Default”
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event
of Default.


“Deemed Dividend Problem”
means, with respect to any Foreign Subsidiary, such Foreign Subsidiary’s
accumulated and undistributed earnings and profits being deemed to be
repatriated to the Borrower or the applicable parent Domestic Subsidiary for
U.S. federal income tax purposes and the effect of such repatriation could
reasonably be expected to cause adverse tax consequences to the Borrower or
such parent Domestic Subsidiary, in each case as determined by the Borrower in
its commercially reasonable judgment acting in good faith and in consultation
with its legal and tax advisors.


“Dollar Amount” of
any currency at any date shall mean (i) the amount of such currency if such
currency is Dollars or (ii) the equivalent in such currency of Dollars if such
currency is a Foreign Currency, calculated on the basis of the Exchange Rate
for such currency, on or as of the most recent Computation Date provided for in
Section 2.04.


“Dollars”
or “$” refers to lawful money of the United
States of America.


“Domestic
Subsidiary” means a Subsidiary organized under the laws of a
jurisdiction located in the United States of America.


“Effective
Date” means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section 9.02).


“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to
health and safety matters.


“Environmental
Liability” means any liability, contingent or otherwise (including
any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the 


7

















 


Borrower
or any Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


“Equity
Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any
such equity interest.


“Equivalent Amount”
of any currency with respect to any amount of Dollars at any date shall mean
the equivalent in such currency of such amount of Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of
the Administrative Agent for such other currency at 11:00 a.m., London time, on
the date on or as of which such amount is to be determined.


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


“ERISA
Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.


“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any ERISA Affiliate of any notice, concerning the imposition
upon the Borrower or any of its ERISA Affiliates of Withdrawal Liability or a
determination that a Multiemployer Plan contributed to by the Borrower or an
ERISA Affiliate is insolvent or in reorganization, within the meaning of Title
IV of ERISA.


“EU”
means the European Union.


“euro”
and/or “EUR” means the single currency of the participating member
states of the EU.


“Eurocurrency”,
when used in reference to a currency means an Agreed Currency and when used in
reference to any Loan or Borrowing, means that such Loan, or the Loans
comprising such Borrowing, bears interest at a rate determined by reference to
the Adjusted LIBO Rate.


8

















 


“Eurocurrency Payment
Office” of the Administrative Agent shall mean, for each Foreign Currency,
the office, branch, affiliate or correspondent bank of the Administrative Agent
for such currency as specified from time to time by the Administrative Agent to
the Borrower and each Lender.


“Event
of Default” has the meaning assigned to such term in Article VII.


“Exchange Rate”
means, on any day, with respect to any Foreign Currency, the rate at which such
Foreign Currency may be exchanged into Dollars, as set forth at approximately
11:00 a.m., Local Time, on such date on the Reuters World Currency Page for
such Foreign Currency.   In the event
that such rate does not appear on any Reuters World Currency Page, the Exchange
Rate with respect to such Foreign Currency shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
reasonably selected by the Administrative Agent or, in the event no such
service is selected, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of
the Administrative Agent for such Foreign Currency on the London market at
11:00 a.m., Local Time, on such date for the purchase of Dollars with such
Foreign Currency, for delivery two Business Days later; provided, that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent, after consultation with the Borrower,
may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.


“Excluded
Assets” means (i) any fee owned real property with a book value of
less than $5,000,000 and all leasehold interests; (ii) motor vehicles and other
assets subject to certificates of title; (iii) pledges and security interests
prohibited by law and agreements permitted hereunder (including liens, leases
and licenses permitted hereunder); (iv) assets specifically requiring
perfection through control agreements (e.g., deposit accounts and securities
accounts); (v) assets to the
extent a security interest in such assets would result in material adverse tax
consequences; and (vi) those assets as to which the Administrative Agent in
consultation with the Borrower reasonably determines that the burden or cost of
obtaining such a security interest, pledge or perfection thereof outweighs the
benefit to the Lenders of the security to be afforded thereby.


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income  by the United States of America, or by any
jurisdiction to which the Lender, Administrative Agent, Issuing Bank or other
recipient, as the case may be, has a present or former connection (other than a
connection arising solely from its performance of obligations under this
Agreement or the other Loan Documents), (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.19(b)), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.17(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.17(a).


“Federal
Funds Effective Rate” means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) 


9

















 


of
the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.


“Financial Assistance
Problem” means, with respect to any Foreign Subsidiary, the inability of
such Foreign Subsidiary to become a Subsidiary Guarantor or to permit its
Equity Interests from being pledged pursuant to a pledge agreement on account
of legal or financial limitations imposed by the jurisdiction of organization
of such Foreign Subsidiary or other relevant jurisdictions having authority
over such Foreign Subsidiary, in each case as determined by the Borrower in its
commercially reasonable judgment acting in good faith and in consultation with
its legal and tax advisors.


“Financial
Officer” means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.


“Financials” means
the annual or quarterly financial statements, and accompanying certificates and
other documents, of the Borrower and its Subsidiaries required to be delivered
pursuant to Section 5.01(a) or 5.01(b).


“First Tier Foreign
Subsidiary” means each Foreign Subsidiary with respect to which any one or
more of the Borrower and its Domestic Subsidiaries directly owns or controls
more than 50% of such Foreign Subsidiary’s issued and outstanding Equity
Interests.


“Foreign Currencies”
means Agreed Currencies other than Dollars.


“Foreign
Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount
of the aggregate undrawn and unexpired amount of all outstanding Foreign
Currency Letters of Credit at such time plus (b) the aggregate principal Dollar
Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit
that have not yet been reimbursed at such time.


“Foreign
Currency Letter of Credit” means a Letter of Credit denominated in a
Foreign Currency.


“Foreign Currency
Sublimit” means $50,000,000, or a greater amount representing a
proportionate increase in the Foreign Currency Sublimit as a result of a
concurrent increase in the Commitments pursuant to Section 2.20 and as is
reasonably calculated by the Administrative Agent with notice to the Borrower
and the Lenders.


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


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


“GAAP”
means generally accepted accounting principles in the United States of America.


“Governmental
Authority” means the government of the United States of America, any
other nation or 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.


10
















 


“Guarantee”
of or by any Person (the “guarantor”) means
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of
the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.


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


“Holders of Secured
Obligations” means the holders of the Secured Obligations from time to time
and shall include (i) each Lender and the Issuing Bank in respect of its Loans
and LC Exposure respectively, (ii) the Administrative Agent, the Issuing Bank
and the Lenders in respect of all other present and future obligations and
liabilities of the Borrower and each Subsidiary of every type and description
arising under or in connection with this Agreement or any other Loan Document,
(iii) each Lender and affiliate of such Lender in respect of Swap Agreements
and Banking Services Agreements entered into with such Person by the Borrower
or any Subsidiary, (iv) each indemnified party under Section 9.03 in respect of
the obligations and liabilities of the Borrower to such Person hereunder and
under the other Loan Documents, and (v) their respective successors and (in the
case of a Lender, permitted) transferees and assigns.


“Increasing Lender”
has the meaning assigned to such term in Section 2.20.


“Incremental Term Loan”
has the meaning assigned to such term in Section 2.20.


“Incremental Term Loan
Amendment” has the meaning assigned to such term in Section 2.20.


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed;
provided that the amount of such Indebtedness will be the lesser of the
fair market value of such asset at the date of determination and the amount of
Indebtedness so secured, (g) all Guarantees by such Person of Indebtedness
of others, (h) all Capital Lease Obligations of such Person, (i)  all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances, and (j) all obligations of such Person under any Swap Agreement or
under any similar type of agreement; provided that earn-outs for Acquisitions
and similar obligations shall not be considered Indebtedness for any 


11

















 


purposes
under this Agreement.  The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


“Information
Memorandum” means the Confidential Information Memorandum dated
August, 2007 relating to the Borrower and the Transactions.


“Interest
Election Request” means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.


“Interest
Payment Date” means (a) with respect to any ABR Loan (other than a
Swingline Loan), the last day of each March, June, September and December and
the Maturity Date, (b) with respect to any Eurocurrency Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period and the Maturity Date and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid and the
Maturity Date.


“Interest
Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or nine or twelve months if acceptable to each Lender) thereafter, as the
Borrower may elect; provided, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of a Eurocurrency
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.


“Issuing
Bank” means JPMorgan Chase Bank, National Association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i). 
The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.


“LC Collateral Account”
has the meaning assigned to such term in Section 2.06(j).


“LC
Disbursement” means a payment made by the Issuing Bank pursuant to a
Letter of Credit.


“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
Dollar Amount of all outstanding Letters of Credit at such time plus (b) the
aggregate Dollar Amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.


12

















 


“Lenders”
means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


“Letter
of Credit” means any letter of credit issued pursuant to this
Agreement.


“Leverage Ratio” has
the meaning assigned to such term in Section 6.10(a).


“LIBO
Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on, in the case of Dollars, Reuters BBA
Libor Rates Page 3750 and, in the case of any Foreign Currency, the appropriate
page of such service which displays British Bankers Association Interest
Settlement Rates for deposits in such Foreign Currency (or, in each case, on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the relevant Agreed Currency in the
London interbank market) at approximately 11:00 a.m., London time, two (2)
Business Days prior to (or, in the case of Loans denominated in Pounds
Sterling, on the day of) the commencement of such Interest Period, as the rate
for deposits in the relevant Agreed Currency with a maturity comparable to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to such Eurocurrency
Borrowing for such Interest Period shall be the rate at which deposits in the
relevant Agreed Currency in an Equivalent Amount of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two (2) Business
Days prior to the commencement of such Interest Period.


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.


“Loan
Documents” means this Agreement, any promissory notes issued
pursuant to Section 2.10(e) of this Agreement, any Letter of Credit
applications, the Collateral Documents, the Subsidiary Guaranty, and all other
agreements, instruments, documents and certificates identified in Section 4.01
executed and delivered to, or in favor of, the Administrative Agent or any
Lenders and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, letter of credit agreements and all other
written matter whether heretofore, now or hereafter executed by or on behalf of
any Loan Party, or any employee of any Loan Party, and delivered to the
Administrative Agent or any Lender in connection with the Agreement or the
transactions contemplated thereby.  Any
reference in the Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the Agreement or
such Loan Document as the same may be in effect at any and all times such
reference becomes operative.


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


“Loans”
means the loans made by the Lenders to the Borrower pursuant to this Agreement.


13

















 


“Local Time” means
(i) New York City time in the case of a Loan, Borrowing or LC Disbursement
denominated in Dollars to, or for the account of, the Borrower and (ii) local
time at the place of the relevant Loan, Borrowing or LC Disbursement (or such
earlier local time as is necessary for the relevant funds to be received and
transferred to the Administrative Agent for same day value on the date the
relevant reimbursement obligation is due) in the case of a Loan, Borrowing or
LC Disbursement which is denominated in a Foreign Currency.


“Mandatory Cost” is
described in Schedule 2.02.


“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, property or financial condition of the Borrower and the Subsidiaries
taken as a whole or (b) the validity or enforceability of this Agreement or any
and all other Loan Documents or the rights or remedies of the Administrative
Agent and the Lenders thereunder.


“Material Domestic
Subsidiary” means each Domestic Subsidiary (i) which, as of the most recent
fiscal quarter of the Borrower, for the period of four consecutive fiscal
quarters then ended, for which financial statements have been delivered
pursuant to Section 5.01, contributed greater than five percent (5%) of the
Borrower’s Consolidated EBITDA for such period or (ii) which contributed
greater than five percent (5%) of the Borrower’s Consolidated Total Assets as
of such date; provided that, if at any time the aggregate amount of the EBITDA
or consolidated total assets of all Domestic Subsidiaries that are not Material
Domestic Subsidiaries exceeds fifteen percent (15%) of the Borrower’s
Consolidated EBITDA for any such period or fifteen percent (15%) of the
Borrower’s Consolidated Total Assets as of the end of any such fiscal quarter,
the Borrower (or, in the event the Borrower has failed to do so within ten (10)
days, the Administrative Agent) shall designate sufficient Domestic Subsidiaries
as “Material Domestic Subsidiaries” to eliminate such excess, and such
designated Subsidiaries shall for all purposes of this Agreement constitute
Material Domestic Subsidiaries.


“Material Foreign
Subsidiary” means each Foreign Subsidiary (i) which, as of the most recent
fiscal quarter of the Borrower, for the period of four consecutive fiscal
quarters then ended, for which financial statements have been delivered
pursuant to Section 5.01, contributed greater than five percent (5%) of the Borrower’s
Consolidated EBITDA for such period or (ii) which contributed greater than five
percent (5%) of the Borrower’s Consolidated Total Assets as of such date;
provided that, if at any time the aggregate amount of the EBITDA or
consolidated total assets of all Foreign Subsidiaries that are not Material
Foreign Subsidiaries exceeds fifteen percent (15%) of the Borrower’s
Consolidated EBITDA for any such period or fifteen percent (15%) of the
Borrower’s Consolidated Total Assets as of the end of any such fiscal quarter,
the Borrower (or, in the event the Borrower has failed to do so within ten (10)
days, the Administrative Agent) shall designate sufficient Foreign Subsidiaries
as “Material Foreign Subsidiaries” to eliminate such excess, and such
designated Subsidiaries shall for all purposes of this Agreement constitute
Material Foreign Subsidiaries.


“Material
Indebtedness” means Indebtedness (other than the Loans and Letters
of Credit), or obligations in respect of one or more Swap Agreements, of any
one or more of the Borrower and its Subsidiaries in an aggregate principal
amount exceeding $15,000,000.  For
purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Borrower or any Subsidiary in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Borrower or such Subsidiary would be required to pay if
such Swap Agreement were terminated at such time.


“Maturity
Date” means September 26, 2012.


“Moody’s”
means Moody’s Investors Service, Inc.


14

















 


“Mortgage” means each
mortgage, deed of trust or other agreement which conveys or evidences a Lien in
favor of the Administrative Agent, for the benefit of the Administrative Agent
and the Holders of Secured Obligations, on real property of a Loan Party,
including any amendment, restatement, modification or supplement thereto.


“Mortgage Instruments”
means such title reports, title insurance, opinions of counsel, surveys,
appraisals and environmental reports as are reasonably requested by, and in
form reasonably acceptable to, the Administrative Agent from time to time.


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


“New Money Credit Event”
means with respect to the Issuing Bank, any increase (directly or indirectly)
in the Issuing Bank’s exposure (whether by way of additional credit or banking
facilities or otherwise, including as part of a restructuring) to the Borrower
or any Governmental Authority in the Borrower’s or any applicable Letter of
Credit beneficiary’s country occurring by reason of (i) any law, action or
requirement of any Governmental Authority in the Borrower’s or such Letter of
Credit beneficiary’s country, or (ii) any request in respect of external
indebtedness of borrowers in the Borrower’s or such Letter of Credit
beneficiary’s country applicable to banks generally which conduct business with
such borrowers, or (iii) any agreement in relation to clause (i) or (ii), in
each case to the extent calculated by reference to the aggregate Revolving
Credit Exposures outstanding prior to such increase.


“Obligations” means
all unpaid principal of and accrued and unpaid interest on the Loans, all LC
Exposure, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Loan Parties to the Lenders or to any
Lender, the Administrative Agent, the Issuing Bank or any indemnified party
arising under the Loan Documents.


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


“Overnight Foreign
Currency Rate” means, for any amount payable in a Foreign Currency, the
rate of interest per annum as determined by the Administrative Agent at which
overnight or weekend deposits in the relevant currency (or if such amount due
remains unpaid for more than three Business Days, then for such other period of
time as the Administrative Agent may elect) for delivery in immediately
available and freely transferable funds would be offered by the Administrative
Agent to major banks in the interbank market upon request of such major banks
for the relevant currency as determined above and in an amount comparable to
the unpaid principal amount of the related Credit Event, plus any taxes,
levies, imposts, duties, deductions, charges or withholdings imposed upon, or
charged to, the Administrative Agent by any relevant correspondent bank in
respect of such amount in such relevant currency.


“Participant”
has the meaning set forth in Section 9.04.


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


“Permitted
Acquisition” means any Acquisition if, at the time of and
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would arise after giving effect 


15

















 


thereto,
(b) such Person or division or line of business is engaged in the same or a
similar line of business as the Borrower and the Subsidiaries or business
reasonably related thereto (it being understood that any travel related or
on-line business shall be considered to be such a same or similar line of
business), (c) all actions required to be taken with respect to such acquired
or newly formed Subsidiary under Section 5.09 shall have been taken, (d) the
Borrower and the Subsidiaries are in compliance, on a Pro Forma Basis after
giving effect to such Acquisition, with the covenants contained in Section 6.10
recomputed as of the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available, as if such Acquisition
(and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in
accordance with its terms) had occurred on the first day of each relevant
period for testing such compliance and, if the aggregate consideration paid in
respect of such Acquisition exceeds $50,000,000, the Borrower shall have
delivered to the Administrative Agent a certificate of a Financial Officer of
the Borrower to such effect, together with all relevant financial information,
statements and projections requested by the Administrative Agent, (e) in the
case of an Acquisition or merger involving the Borrower or a Subsidiary, the
surviving entity of such merger and/or consolidation shall be the Borrower or,
in the case of a Subsidiary, such Subsidiary or another Person that becomes a
Subsidiary and (f) the aggregate consideration paid in respect of such
Acquisition (other than capital stock of the Borrower), when taken together
with the aggregate consideration paid in respect of all other Acquisitions,
does not exceed the Permitted Acquisition Amount during any fiscal year of the
Borrower; provided that this clause (f) shall not apply if the Borrower
has complied with the Adjusted Covenant Requirement.  As used herein, “Permitted Acquisition
Amount” means (x) the greater of (1) $100,000,000 and (2) $100,000,000 plus
an amount (not to exceed $50,000,000) representing earn-out obligations
incurred as a result of increased operating performance in respect of
previously-consummated Acquisitions (for the avoidance of doubt, such earn-out
obligations shall be calculated in respect of the fiscal year during which such
obligations are actually paid) minus (y) amounts invested pursuant to
Section 6.04(n) based on the unused portion of the Permitted Acquisition
Amount.


“Permitted
Encumbrances” means:


(a)  Liens imposed by law for taxes, assessments
and governmental charges or levies that are not yet due or are being contested
in compliance with Section 5.04;


(b)  carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed by law in respect of
property or assets, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being
contested in compliance with Section 5.04;


(c)  liens, pledges and deposits made in the
ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations;


(d)  deposits to secure the performance of bids,
tenders, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each case
in the ordinary course of business and consistent with past practices
(exclusive of obligations in respect of the payment for borrowed money);


(e)  judgment liens or awards in respect of
judgments that do not constitute an Event of Default under clause (k) of
Article VII; and


(f)  easements, zoning restrictions, encroachments,
rights-of-way and similar charges or encumbrances, and minor title deficiencies
on real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially detract from
the 


16





















 


value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary;


provided that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


“Permitted Investments” means:


(a)  direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof;


(b)  investments in commercial paper maturing
within 270 days from the date of acquisition thereof and having, at such date
of acquisition, the highest credit rating obtainable from S&P or from Moody’s;


(c)  investments in certificates of deposit,
banker’s acceptances and time deposits maturing within 180 days from the date
of acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not
less than $500,000,000;


(d)  fully collateralized repurchase agreements
with a term of not more than thirty (30) days for securities described in
clause (a) above and entered into with a financial institution satisfying the
criteria described in clause (c) above;


(e)  money market funds that (i) comply with the
criteria set forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s
and (iii) have portfolio assets of at least $5,000,000,000; and


(f)  investments made under the Borrower’s policy
for investing in portfolios denominated in euros and British pounds sterling or
the Borrower’s policy for investing in portfolios denominated in Dollars, in
each case as in effect on the Effective Date and without giving to effect to
any amendments, modifications or supplements thereto subsequent to the
Effective Date made without the written consent of the Administrative Agent.


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


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is an “employer” as defined in Section 3(5) of ERISA.


“Pledge Subsidiary”
means (i) each Domestic Subsidiary and (ii) each First Tier Foreign Subsidiary
which is a Material Foreign Subsidiary.


“Pounds Sterling”
means the lawful currency of the United Kingdom.


“Prime
Rate” means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, National Association as its prime rate in
effect at its principal office in New 


17

















 


York
City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.


“Pro Forma Basis”
means on a basis in accordance with GAAP and Regulation S-X.


“Register”
has the meaning set forth in Section 9.04.


“Regulation S-X”
means Regulation S-X promulgated pursuant to the Securities Act (as such
regulation is in effect on the Effective Date).


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


“Required
Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
Equity Interests in the Borrower or any option, warrant or other right to
acquire any such Equity Interests in the Borrower.


“Revolving
Credit Exposure” means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Revolving Loans and
its LC Exposure and Swingline Exposure at such time.


“Revolving
Loan” means a Loan made pursuant to Section 2.01.


“S&P”
means Standard & Poor’s.


“Sale and Leaseback
Transaction” means any sale or other transfer of any property or asset by
any Person with the intent to lease such property or asset as lessee.


“Secured Obligations”
means all Obligations, together with all Swap Obligations and Banking Services
Obligations owing to one or more Lenders or their respective Affiliates.


“Security Agreement”
means that certain Pledge and Security Agreement (including any and all
supplements thereto), dated as of the date hereof, between the Loan Parties and
the Administrative Agent, for the benefit of the Administrative Agent and the
other Holders of Secured Obligations, and any other pledge or security
agreement entered into, after the date of this Agreement by any other Loan
Party (as required by this Agreement or any other Loan Document), or any other
Person, as the same may be amended, restated or otherwise modified from time to
time.


“Significant Subsidiary”
means any Subsidiary of the Borrower that would be a “significant subsidiary”
as defined in Article 1, Rule 1-02 of Regulation S-X.


“Statutory
Reserve Rate” means, with respect to any currency, a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one 


18

















 


minus
the aggregate of the maximum reserve, liquid asset, fees or similar
requirements (including any marginal, special, emergency or supplemental
reserves or other requirements) established by any central bank, monetary
authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or
liabilities customarily used to fund loans in such currency, expressed in the
case of each such requirement as a decimal. 
Such reserve percentages shall, in the case of Dollar denominated Loans,
include those imposed pursuant to Regulation D of the Board.  Eurocurrency Loans shall be deemed to be
subject to such reserve, liquid asset or similar requirements without benefit
of or credit for proration, exemptions or offsets that may be available from
time to time to any Lender under any applicable law, rule or regulation,
including Regulation D.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve, liquid asset or similar requirement.


“subsidiary”
means, with respect to any Person (the “parent”)
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.


“Subsidiary”
means any subsidiary of the Borrower.


“Subsidiary
Guarantor” means each Material Domestic Subsidiary that becomes a
party to the Subsidiary Guaranty (including pursuant to a joinder or supplement
thereto).  The Subsidiary Guarantors on
the Effective Date are identified as such in Schedule 3.01 hereto.


“Subsidiary
Guaranty” means that certain Guaranty dated as of the Effective Date
(including any and all supplements thereto) and executed by each Subsidiary
Guarantor as amended, restated, supplemented or otherwise modified from time to
time.


“Swap
Agreement” means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.


“Swap Obligations”
means any and all obligations of the Borrower or any Subsidiary, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all Swap Agreements permitted
hereunder with a Lender or an affiliate of a Lender, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any such
Swap Agreement transaction.


“Swingline
Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. 
The Swingline Exposure of any Lender at any time shall be its Applicable
Percentage of the total  Swingline
Exposure at such time.


19
















 


“Swingline
Lender” means JPMorgan Chase Bank, National Association, in its
capacity as lender of Swingline Loans hereunder.


“Swingline
Loan” means a Loan made pursuant to Section 2.05.


“Syndication Agent”
means Bank of America, N.A. in its capacity as syndication agent for the credit
facility evidenced by this Agreement.


“TARGET” means the
Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET)
payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent
to be a suitable replacement) for the settlement of payments in euro.


“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.


“Transactions”
means the execution, delivery and performance by the Loan Parties of this
Agreement and the other Loan Documents, the borrowing of Loans and other credit
extensions, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


“UCC” means the
Uniform Commercial Code as in effect from time to time in the State of New York
or any other state the laws of which are required to be applied in connection
with the issue of perfection of security interests.


“Unliquidated Obligations”
means, at any time, any Secured Obligations (or portion thereof) that are
contingent in nature or unliquidated at such time, including any Secured
Obligation that is: (i) an obligation to reimburse a bank for drawings not yet
made under a letter of credit issued by it; (ii) any other obligation
(including any guarantee) that is contingent in nature at such time; or (iii)
an obligation to provide collateral to secure any of the foregoing types of
obligations.


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurocurrency
Loan”) or by Class and Type (e.g., a “Eurocurrency
Revolving Loan”).  Borrowings also may be
classified and referred to by Class (e.g.,
a “Revolving Borrowing”) or by Type (e.g.,
a “Eurocurrency Borrowing”) or by Class and Type (e.g.,
a “Eurocurrency Revolving Borrowing”).


 


SECTION 1.03.  Terms Generally.  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 (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, 


 


20





















 


restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, restatements supplements or
modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement and (e) 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.


SECTION 1.04.  Accounting Terms;
GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision  amended in accordance herewith.


SECTION 1.05.  Currency Equivalents
Generally.  For the purposes
of determining compliance with Sections 6.01, 6.02 and 6.04 with respect to any
amount of Indebtedness or Investment in euro, Pounds Sterling, Japanese Yen and
any other hard currency (other than Dollars) which is freely traded and
convertible into Dollars in the London interbank market and for which the
Dollar Amount thereof can be readily calculated, no Default shall be deemed to
have occurred solely as a result of changes in rates of exchange occurring
after the time such Indebtedness or Investment is incurred.


ARTICLE II


The Credits


SECTION 2.01.  Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower in Agreed
Currencies from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) the Dollar Amount of such Lender’s
Revolving Credit Exposure exceeding the Dollar Amount of such Lender’s
Commitment, (b) subject to Section 2.04, the sum of the total Dollar Amount of
the Revolving Credit Exposures exceeding the Aggregate Commitment or (c)
subject to Section 2.04, the Dollar Amount of the total outstanding Revolving
Loans and LC Exposure, in each case denominated in Foreign Currencies,
exceeding the Foreign Currency Sublimit. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.


SECTION 2.02.  Loans and Borrowings.  (a) 
Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments.  The failure of any Lender
to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.


(b)  Subject to Section 2.14, each Revolving
Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as the
Borrower may request in accordance herewith; provided that 


21





















 


each ABR Loan shall only be made in Dollars.  Each Swingline Loan shall be an ABR
Loan.  Each Lender at its option may make
any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.


(c)  At the commencement of each Interest Period
for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 (or the Approximate Equivalent Amount of each such amount if such
Borrowing is denominated in a Foreign Currency).  At the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $3,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the Aggregate Commitment or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e).  Each Swingline Loan shall be in
an amount that is an integral multiple of $500,000 and not less than
$500,000.  Borrowings of more than one
Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of twelve (12)
Eurocurrency Revolving Borrowings outstanding.


(d)  Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


SECTION 2.03.  Requests for
Revolving Borrowings.  To
request a Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing,
not later than 11:00 a.m., Local Time, three (3) Business Days (in the case of
a Eurocurrency Borrowing denominated in Dollars) or four (4) Business Days (in
the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in
each case before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one (1) Business
Day before the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.06(e) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed
Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section
2.02:


(i)  the aggregate amount of the
requested Borrowing;


(ii)  the date of such Borrowing,
which shall be a Business Day;


(iii)  whether such Borrowing is to
be an ABR Borrowing or a Eurocurrency Borrowing;


(iv)  in the case of a
Eurocurrency Borrowing, the Agreed Currency and initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and


(v)  the location and number of
the Borrower’s account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.07.


If no election as to the
Type of Revolving Borrowing is specified, then, in the case of a Borrowing
denominated in Dollars, the requested Revolving Borrowing shall be an ABR
Borrowing.  If no Interest Period is
specified with respect to any requested Eurocurrency Revolving Borrowing, then
the Borrower 


22

















 


shall be deemed to have
selected an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s Loan to
be made as part of the requested Borrowing.


SECTION 2.04.  Determination of
Dollar Amounts.  The
Administrative Agent will determine the Dollar Amount of:


(a)  each Eurocurrency Borrowing as of the date
three (3) Business Days prior to the date of such Borrowing or, if applicable,
date of conversion/continuation of any Borrowing as a Eurocurrency Borrowing,


(b)  the LC Exposure as of the date of each request
for the issuance, amendment, renewal or extension of any Letter of Credit, and


(c)  all outstanding Credit Events on and as of the
last Business Day of each calendar quarter and, during the continuation of an
Event of Default, on any other Business Day elected by the Administrative Agent
in its discretion or upon instruction by the Required Lenders.


Each day upon or as of which the
Administrative Agent determines Dollar Amounts as described in the preceding clauses
(a), (b) and (c) is herein described as a “Computation Date” with
respect to each Credit Event for which a Dollar Amount is determined on or as
of such day.


 


SECTION 2.05.  Swingline Loans.  (a) 
Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans in Dollars to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $5,000,000 or (ii) the Dollar Amount of
the total Revolving Credit Exposures exceeding the Aggregate Commitment; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline
Loan.  Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.


(b)  To request a Swingline Loan, the Borrower
shall notify the Administrative Agent of such request by telephone (confirmed
by telecopy), not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan.  Each such
notice shall be irrevocable and shall specify the requested date (which shall
be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.


(c)  The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m., New York City
time, on any Business Day require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each  Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that its
obligation to acquire 


23





















 


participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the
Borrower for any reason.  The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.


SECTION 2.06.  Letters of Credit.  (a) General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit denominated
in Agreed Currencies for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to
time during the Availability Period.  In
the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control; provided, however, if
the Issuing Bank is requested to issue Letters of Credit with respect to a
jurisdiction the Issuing Bank deems, in its reasonable judgment, may at any
time subject it to a New Money Credit Event or a Country Risk Event, the
Borrower shall, at the request of the Issuing Bank, guaranty and indemnify the
Issuing Bank against any and all costs, liabilities and losses resulting from
such New Money Credit Event or Country Risk Event, in each case in a form and
substance reasonably satisfactory to the Issuing Bank.


(b)  Notice
of Issuance, Amendment,
Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the Agreed Currency
applicable thereto, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit.  If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on
the Issuing Bank’s standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the Dollar Amount of the LC Exposure shall not exceed
$50,000,000, (ii) subject to Section 2.04, the total Revolving Credit Exposures
shall not exceed the Aggregate Commitment and (iii) subject


24





















 


to Section 2.04, the Dollar Amount of the sum of the
total outstanding Revolving Loans and LC Exposure, in each case denominated in
Foreign Currencies, shall not exceed the Foreign Currency Sublimit.


(c)  Expiration
Date.  Each Letter of Credit
shall expire at or prior to the close of business on the earlier of (i) the
date one year after the date of the issuance of such Letter of Credit (or, in
the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five (5) Business Days prior to the
Maturity Date.


(d)  Participations.  By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate Dollar Amount available to be drawn
under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason.  Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.


(e)  Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent in Dollars the Dollar
Amount equal to such LC Disbursement, calculated as of the date the Issuing
Bank made such LC Disbursement (or if the Issuing Bank shall so elect in its
sole discretion by notice to the Borrower, in such other Agreed Currency which
was paid by the Issuing Bank pursuant to such LC Disbursement in an amount
equal to such LC Disbursement) not later than 12:00 noon, Local Time, on the
Business Day immediately following the day that the Borrower receives notice of
such LC Disbursement; provided that, if
such LC Disbursement is not less than the Dollar Amount of $1,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.05 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent Dollar Amount of
such LC Disbursement and, to the extent so financed, the Borrower’s obligation
to make such payment shall be discharged and replaced by the resulting ABR
Revolving Borrowing or Swingline Loan. 
If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender’s Applicable
Percentage thereof.  Promptly following
receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis  mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to 


25





















 


reimburse such LC Disbursement.  If the Borrower’s reimbursement of, or
obligation to reimburse, any amounts in any Foreign Currency would subject the
Administrative Agent, the Issuing Bank or any Lender to any stamp duty, ad
valorem charge or similar tax that would not be payable if such reimbursement
were made or required to be made in Dollars, the Borrower shall, at its option,
either (x) pay the amount of any such tax requested by the Administrative
Agent, the Issuing Bank or the relevant Lender or (y) reimburse each LC
Disbursement made in such Foreign Currency in Dollars, in an amount equal to
the Equivalent Amount, calculated using the applicable exchange rates, on the
date such LC Disbursement is made, of such LC Disbursement.


(f)  Obligations
Absolute.  The Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. 
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof.  The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised
care in each such determination.  In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.


(g)  Disbursement
Procedures.  The Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.


(h)  Interim
Interest.  If the Issuing Bank
shall make any LC Disbursement, then, unless the Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, 


26





















 


the unpaid amount thereof shall bear interest, for
each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Revolving Loans (or in the case such LC
Disbursement is denominated in a Foreign Currency, at the Overnight Foreign
Currency Rate for such Agreed Currency plus the then effective
Applicable Rate with respect to Eurocurrency Revolving Loans); provided that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.13(c) shall apply.  Interest
accrued pursuant to this paragraph shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.


(i)  Replacement
of Issuing Bank.  The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit then outstanding and
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


(j)  Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit
of cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders (the “LC Collateral Account”), an
amount in cash equal to 105% of the Dollar Amount of the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that (i) the
portions of such amount attributable to undrawn Foreign Currency Letters of Credit
or LC Disbursements in a Foreign Currency that the Borrower is not late in
reimbursing shall be deposited in the applicable Foreign Currencies in the
actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii)
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article
VII.  For the purposes of this paragraph,
the Foreign Currency LC Exposure shall be calculated using the applicable
exchange rates of the Administrative Agent on the date notice demanding cash
collateralization is delivered to the Borrower. 
The Borrower also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b).  Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the Secured Obligations.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account and the Borrower hereby grants the Administrative Agent a security
interest in the Collateral Account. 
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest.  Interest or
profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement 


27





















 


obligations of the Borrower for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated (but subject to
the consent of Lenders with LC Exposure 
representing greater than 50% of the total LC Exposure), be applied to
satisfy other Secured Obligations.  If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three (3)
Business Days after all Events of Default have been cured or waived.


(k)  Conversion.  In the event that the Loans become
immediately due and payable on any date pursuant to Article VII, all amounts
(i) that the Borrower is at the time or thereafter becomes required to
reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Foreign Currency Letter of Credit (other than
amounts in respect of which the Borrower has deposited cash collateral pursuant
to paragraph (j) above, if such cash collateral was deposited in the applicable
Foreign Currency to the extent so deposited or applied), (ii) that the Lenders
are at the time or thereafter become required to pay to the Administrative
Agent and the Administrative Agent is at the time or thereafter becomes
required to distribute to the Issuing Bank pursuant to paragraph (e) of this
Section in respect of unreimbursed LC Disbursements made under any Foreign
Currency Letter of Credit and (iii) of each Lender’s participation in any
Foreign Currency Letter of Credit under which an LC Disbursement has been made
shall, automatically and with no further action required, be converted into the
Dollar Amount, calculated using the Administrative Agent’s currency exchange
rates on such date (or in the case of any LC Disbursement made after such date,
on the date such LC Disbursement is made), of such amounts.  On and after such conversion, all amounts
accruing and owed to the Administrative Agent, the Issuing Bank or any Lender
in respect of the obligations described in this paragraph shall accrue and be
payable in Dollars at the rates otherwise applicable hereunder.


                                SECTION
2.07.  Funding of Borrowings.  (a) 
Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds (i) in
the case of Loans denominated in Dollars, by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders and (ii) in the case of each Loan denominated
in a Foreign Currency, by 12:00 noon, Local Time, in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency and at
such Eurocurrency Payment Office for such currency; provided that
Swingline Loans shall be made as provided in Section 2.05.  The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to (x) an account of the Borrower maintained with the
Administrative Agent in New York City or Chicago and designated by the Borrower
in the applicable Borrowing Request, in the case of Loans denominated in Dollars
and (y) an account of the Borrower designated by the Borrower in the applicable
Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided
that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.


 


(b)  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date 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 paragraph (a) of
this Section 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 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 (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank 


28





















 


compensation (including without limitation the
Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign
Currency) or (ii) in the case of the Borrower, the interest rate applicable to
ABR Loans.  If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such Lender’s
Loan included in such Borrowing.


SECTION 2.08.  Interest Elections.  (a) 
Each Revolving Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurocurrency Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request.  Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.  This
Section shall not apply to Swingline Borrowings, which may not be converted or continued.


(b)  To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.  Notwithstanding any contrary
provision herein, this Section shall not be construed to permit the Borrower to
(i) change the currency of any Borrowing, (ii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert
any Borrowing to a Borrowing of a Type not available under the Class of
Commitments pursuant to which such Borrowing was made.


(c)  Each telephonic and written Interest Election
Request shall specify the following information in compliance with Section
2.02:


(i)  the Borrowing to which such
Interest Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);


(ii)  the effective date of the
election made pursuant to such Interest Election Request, which shall be a
Business Day;


(iii)  whether the resulting
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and


(iv)  if the resulting Borrowing
is a Eurocurrency Borrowing, the Interest Period and Agreed Currency to be
applicable thereto after giving effect to such election, which Interest Period
shall be a period contemplated by the definition of the term “Interest Period”.


If any such Interest
Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration.


(d)  Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender’s portion of each resulting Borrowing.


29





















 


(e)  If the Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Revolving Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period (i)
in the case of a Borrowing denominated in Dollars, such Borrowing shall be
converted to an ABR Borrowing and (ii) in the case of a Borrowing denominated
in a Foreign Currency, such Borrowing shall automatically continue as a
Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of
one month unless (x) such Eurocurrency Borrowing is or was repaid in accordance
with Section 2.11 or (y) the Borrower shall have given the Administrative Agent
an Interest Election Request requesting that, at the end of such Interest
Period, such Eurocurrency Borrowing continue as a Eurocurrency Borrowing for
the same or another Interest Period. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing may be converted
to or continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Revolving Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.


SECTION 2.09.  Termination and
Reduction of Commitments. 
(a)  Unless previously terminated,
the Commitments shall terminate on the Maturity Date.


(b)  The Borrower may at any time terminate, or
from time to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $5,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.11, the
Dollar Amount of the sum of the Revolving Credit Exposures would exceed the
Aggregate Commitment.


(c)  The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Commitments under paragraph
(b) of this Section at least three (3) Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof.  Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof.  Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that 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.  Any termination or reduction
of the Commitments shall be permanent. 
Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.


SECTION 2.10.  Repayment of Loans; Evidence of Debt.  (a)The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Revolving Loan on the Maturity Date in
the currency of such Loan and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day
of a calendar month and is at least two (2) Business Days after such Swingline
Loan is made; provided that on each date
that a Revolving Borrowing is made, the Borrower shall repay all Swingline
Loans then outstanding.


 


(b)  Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


30
















 


(c)  The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made hereunder,
the Class, Agreed Currency and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.


(d)  The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section shall be prima  facie
evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.


(e)  Any Lender may request that Loans made by it
be evidenced by a promissory note.  In
such event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the Administrative Agent.  Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


SECTION 2.11.  Prepayment of Loans.


(a)  The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior
notice in accordance with the provisions of this Section 2.11(a).  The Borrower shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurocurrency Revolving Borrowing, not later than
11:00 a.m., Local Time, three (3) Business Days before the date of prepayment,
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later than
11:00 a.m., New York City time, one (1) Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.09, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. 
Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof.  Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type as provided in Section
2.02.  Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing.  Prepayments shall be
accompanied by (i) accrued interest to the extent required by Section 2.13 and
(ii) break funding payments pursuant to Section 2.16.


(b)  If at any time, (i) other than as a result of
fluctuations in currency exchange rates, the sum of the aggregate principal
Dollar Amount of all of the Revolving Credit Exposures (calculated, with
respect to those Credit Events denominated in Foreign Currencies, as of the most
recent Computation Date with respect to each such Credit Event) exceeds the
Aggregate Commitment and (ii) solely as a result of fluctuations in currency
exchange rates, the sum of the aggregate principal Dollar Amount of all of the
outstanding Revolving Loans and LC Exposure, in each case denominated in
Foreign Currencies (collectively, “Foreign Currency Exposure”), as of
the most recent Computation Date with respect to each such Credit Event,
exceeds 105% of the Foreign Currency Sublimit, the Borrower shall immediately
repay Borrowings or cash collateralize LC Disbursements in an account with the
Administrative Agent 


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pursuant to Section 2.06(j), as applicable, in an
aggregate principal amount sufficient to cause (x) the aggregate Dollar Amount
of all Revolving Credit Exposures (so calculated) to be less than or equal to
the Aggregate Commitment and (y) the Foreign Currency Exposure to be less than
or equal to the Foreign Currency Sublimit.


SECTION 2.12.  Fees.  (a)  The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily amount of the Available Commitment of such Lender during the
period from and including the Effective Date to but excluding the date on which
such Commitment terminates; provided that,
if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such commitment fee shall continue to accrue on the
average daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure.  Accrued commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided
that any commitment fees accruing after the date on which the Commitments
terminate shall be payable on demand. 
All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).


(b)  The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lender’s
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but excluding
the later of the date on which such Lender’s Commitment terminates and the date
on which such Lender ceases to have any LC Exposure and (ii) to the Issuing
Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the
average daily Dollar Amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) attributable to Letters of
Credit issued by the Issuing Bank during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well
as the Issuing Bank’s standard fees and commissions with respect to the
issuance, amendment, cancellation, negotiation, transfer, presentment, renewal
or extension of any Letter of Credit or processing of drawings thereunder.  Unless otherwise specified above,
participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable on the
last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur
after the Effective Date; provided that all
such fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on which the Commitments terminate shall
be payable on demand.  Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
ten (10) days after demand.  All
participation fees and fronting fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).


(c)  The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative Agent.


(d)  All fees payable hereunder shall be paid on
the dates due, in Dollars (except as otherwise expressly provided in this
Section 2.12) and immediately available funds, to the Administrative Agent (or
to the Issuing Bank, in the case of fees payable to it) for distribution, in
the case of commitment fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any
circumstances.


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SECTION 2.13.  Interest.  (a) 
The Loans comprising each ABR Borrowing (including each Swingline Loan)
shall bear interest at the Alternate Base Rate plus the Applicable Rate.


(b)  The Loans comprising each Eurocurrency
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.


(c)  Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount,
2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.


(d)  Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Revolving Loans, upon termination of the Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurocurrency Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.


(e)  All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest (i) computed by reference
to the Alternate Base Rate at times when the Alternate Base Rate is based on
the Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year) and (ii) for Borrowings denominated in Pounds Sterling
shall be computed on the basis of a year of 365 days, and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).  The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.


SECTION 2.14.  Alternate Rate of
Interest.  If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:


(a)  the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period; or


(b)  the Administrative Agent is advised by the
Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;


then the Administrative
Agent shall give notice thereof to the Borrower and the Lenders by telephone or
telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Eurocurrency Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurocurrency Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing; provided that if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.


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SECTION 2.15.  Increased Costs.  (a)  If
any Change in Law shall:


(i)  impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate) or
the Issuing Bank; or


(ii)  impose on any Lender or the
Issuing Bank or the London interbank market any other condition affecting this
Agreement or Eurocurrency 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 Eurocurrency Loan or of maintaining its obligation to make any such Loan
(including, without limitation, pursuant to any conversion of any Borrowing
denominated in an Agreed Currency into a Borrowing denominated in any other
Agreed Currency) or to increase the cost to such Lender or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit (including,
without limitation, pursuant to any conversion of any Borrowing denominated in
an Agreed Currency into a Borrowing denominated in any other Agreed Currency)
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder, whether of principal, interest or otherwise (including,
without limitation, pursuant to any conversion of any Borrowing denominated in
an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then
the Borrower will pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.


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


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


(d)  Failure or delay on the part of any Lender or
the Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation; provided that the Borrower
shall not be required to compensate a Lender or the Issuing Bank pursuant to
this Section for any increased costs or reductions incurred more than 270 days
prior to the date that such Lender or the Issuing Bank, 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 Issuing Bank’s intention to claim
compensation therefor; provided  further that, if the Change in Law 


34





















 


giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.


(e)  Notwithstanding anything to the contrary
contained herein, this Section 2.15 shall not apply to taxes.


SECTION 2.16.  Break Funding
Payments.  In the event of (a)
the payment of any principal of any Eurocurrency Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default or as a result of any prepayment pursuant to Section 2.11), (b) the
conversion of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurocurrency Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(a) and is revoked in accordance therewith) or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense (but excluding loss of anticipated profits) attributable
to such event.  Such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at
the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for
such period at the interest rate which such Lender would bid were it to bid, at
the commencement of such period, for deposits in the relevant currency of a
comparable amount and period from other banks in the eurocurrency market.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10)
days after receipt thereof.


SECTION 2.17.  Taxes.  (a) 
Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.


(b)  In addition, the Borrower shall pay any Other
Taxes imposed on or incurred by the Administrative Agent, a Lender or the
Issuing Bank to the relevant Governmental Authority in accordance with
applicable law.


(c)  The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within ten (10) days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability 


35





















 


delivered to the Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Issuing Bank, shall be conclusive absent manifest error.


(d)  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver or cause to be delivered 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)  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate.  In furtherance of the
foregoing, each Foreign Lender agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Effective Date, or in the case of a
Foreign Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 9.04 on or before the date such assignee or
transferee becomes a party to this Agreement:


(i)  two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN, or
Form W-8IMY (with respect to a complete exemption under an income tax treaty)
(or successor forms) certifying to such Foreign Lender’s entitlement as of such
date to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement, or


(ii)  if the Foreign Lender is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form W-8ECI, Form W-8BEN, or Form
W-8IMY (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above:


a.             a certificate substantially in the form of Exhibit F
(any such certificate, a “Non-Bank Certificate”) and


b.             two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption) (or successor form) certifying to such Foreign Lender’s entitlement
as of such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement.


In addition, each Foreign
Lender agrees that from time to time after the Effective Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower or the
Administrative Agent two new accurate and complete original signed copies of
the relevant forms described above (or applicable successor forms) and such
other forms as may be required in order to confirm or establish the entitlement
of such Foreign Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement, or it
shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Foreign
Lender shall not be required to deliver any such Form or Certificate pursuant
to this Section 2.17(e).


36

















 


(f)  If the Administrative Agent or a Lender
determines, in good faith that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender 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 or such Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other Person.


SECTION 2.18.  Payments Generally;
Allocations of Proceeds; Pro Rata Treatment; Sharing of Set-offs.


(a)  The Borrower shall make each payment required
to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in
Dollars, 12:00 noon, New York City time and (ii) in the case of payments
denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the
Administrative Agent’s Eurocurrency Payment Office for such currency, in each
case on the date when due, in immediately available funds, without set-off or
counterclaim.  Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon.  All
such payments shall be made (i) in the same currency in which the applicable
Credit Event was made (or where such currency has been converted to euro, in
euro) and (ii) to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York 10017 or, in the case of a Credit Event denominated in a
Foreign Currency, the Administrative Agent’s Eurocurrency Payment Office for
such currency, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled
thereto.  The Administrative Agent shall
distribute any such payments denominated in the same currency received by it
for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. 
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Credit Event in any Foreign Currency, currency control or
exchange regulations are imposed in the country which issues such currency with
the result that the type of currency in which the Credit Event was made (the “Original
Currency”) no longer exists or the Borrower is not able to make payment to
the Administrative Agent for the account of the Lenders in such Original
Currency, then all payments to be made by the Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the
Dollar Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that the Borrower takes all risks of the
imposition of any such currency control or exchange regulations.


(b)  Any proceeds of Collateral received by the
Administrative Agent (i) not constituting a specific payment of principal,
interest, fees or other sum payable under the Loan Documents (which shall be
applied as specified by the Borrower) or (ii) after an Event of Default has
occurred and is continuing and the Administrative Agent so elects or the
Required Lenders so direct, such funds shall be applied ratably first,
to pay any fees, indemnities, or expense reimbursements including amounts then
due to the 


37





















 


Administrative Agent and the Issuing Bank from the
Borrower (other than in connection with Banking Services Obligations and Swap
Obligations), second, to pay any fees or expense reimbursements then due
to the Lenders from the Borrower (other than in connection with Banking
Services Obligations and Swap Obligations), third, to pay interest then
due and payable on the Loans ratably, fourth, to prepay principal on the
Loans and unreimbursed LC Disbursements ratably, fifth, to pay an amount
to the Administrative Agent equal to one hundred five percent (105%) of the
aggregate undrawn face amount of all outstanding Letters of Credit and the
aggregate amount of any unpaid LC Disbursements, to be held as cash collateral
for such Obligations, sixth, to payment of any amounts owing with
respect to Banking Services Obligations and Swap Obligations, and seventh,
to the payment of any other Secured Obligation due to the Administrative Agent
or any Lender by the Borrower. 
Notwithstanding anything to the contrary contained in this Agreement,
unless so directed by the Borrower, or unless a Default is in existence, none
of the Administrative Agent or any Lender shall apply any payment which it
receives to any Eurocurrency Loan of a Class, except (a) on the expiration date
of the Interest Period applicable to any such Eurocurrency Loan or (b) in the
event, and only to the extent, that there are no outstanding ABR Loans of the
same Class and, in any event, the Borrower shall pay the break funding payment
required in accordance with Section 2.16. 
The Administrative Agent and the Lenders shall have the continuing and
exclusive right to apply and reverse and reapply any and all such proceeds and
payments to any portion of the Secured Obligations.


(c)  At the election of the Administrative Agent,
all payments of principal, interest, LC Disbursements, fees, premiums,
reimbursable expenses (including, without limitation, all reimbursement for fees
and expenses pursuant to Section 9.03), and other sums payable under the Loan
Documents, may be paid from the proceeds of Borrowings made hereunder whether
made following a request by the Borrower pursuant to Section 2.03 or a deemed
request as provided in this Section or may be deducted from any deposit account
of the Borrower maintained with the Administrative Agent.  The Borrower hereby irrevocably authorizes
(i) the Administrative Agent to make a Borrowing for the purpose of paying each
payment of principal, interest and fees as it becomes due hereunder or any
other amount due under the Loan Documents and agrees that all such amounts
charged shall constitute Loans (including Swingline Loans) and that all such
Borrowings shall be deemed to have been requested pursuant to Sections 2.03,
2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any
deposit account of the Borrower maintained with the Administrative Agent or
Administrative Agent for each payment of principal, interest and fees as it
becomes due hereunder or any other amount due under the Loan Documents.


(d)  If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving
such greater proportion shall purchase (for cash at face value) participations
in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary 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
Revolving Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, 
such participations shall be rescinded and the purchase price restored
to the extent of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC
Disbursements and Swingline Loans to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this
paragraph shall apply).  The 


38





















 


Borrower 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 the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.


(e)  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 Issuing Bank
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 Issuing Bank, 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 Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation (including without limitation the Overnight Foreign Currency Rate
in the case of Loans denominated in a Foreign Currency).


(f)  If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b),
2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid.


SECTION 2.19.  Mitigation
Obligations; Replacement of Lenders. 
(a)  If any Lender requests
compensation under Section 2.15, 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 2.17, 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 2.15 or 2.17, as the case may be, in the future and (ii)
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)  If any Lender requests compensation under
Section 2.15, 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 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, 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 Section 9.04), all its interests, rights and obligations under the
Loan 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
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and funded
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, 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) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments.  A Lender


39





















 


shall not be required to make any such assignment
and 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.


SECTION 2.20.  Expansion Option.  The Borrower may from time to time elect to
increase the Commitments or enter into one or more tranches of term loans (each
an “Incremental Term Loan”), in each case in minimum increments of
$25,000,000 so long as, after giving effect thereto, the aggregate amount of
such increases and all such Incremental Term Loans does not exceed
$100,000,000.  The Borrower may arrange
for any such increase or tranche to be provided by one or more Lenders (each
Lender so agreeing to an increase in its Commitment, or to participate in such
Incremental Term Loans, an “Increasing Lender”), or by one or more new
banks, financial institutions or other entities (each such new bank, financial
institution or other entity, an “Augmenting Lender”), to increase their
existing Commitments, or to participate in such Incremental Term Loans, or
extend Commitments, as the case may be; provided that (i) each Augmenting
Lender, shall be subject to the approval of the Borrower and the Administrative
Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such
Increasing Lender execute an agreement substantially in the form of Exhibit
C hereto, and (y) in the case of an Augmenting Lender, the Borrower and
such Augmenting Lender execute an agreement substantially in the form of Exhibit
D hereto.  Increases and new
Commitments and Incremental Term Loans created pursuant to this Section 2.20
shall become effective on the date agreed by the Borrower, the Administrative
Agent and the relevant Increasing Lenders or Augmenting Lenders and the
Administrative Agent shall notify each Lender thereof.  Notwithstanding the foregoing, no increase in
the Commitments (or in the Commitment of any Lender) or tranche of Incremental
Term Loans shall become effective under this paragraph unless, (i) on the
proposed date of the effectiveness of such increase or Incremental Term Loans,
(A) the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied or waived by the Required Lenders and the Administrative Agent shall
have received a certificate to that effect dated such date and executed by a
Financial Officer of the Borrower and (B) in the event Incremental Term Loans
are being incurred pursuant to this Section 2.20, the Borrower shall be in
compliance (on a pro forma basis reasonably acceptable to the Administrative
Agent) with the covenants contained in Section 6.10 and (ii) the Administrative
Agent shall have received documents consistent with those delivered on the
Effective Date as to the corporate power and authority of the Borrower to
borrow hereunder after giving effect to such increase.  On the effective date of any increase in the
Commitments or any Incremental Term Loans being made, (i) each relevant
Increasing Lender and Augmenting Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Lenders, as
being required in order to cause, after giving effect to such increase and the
use of such amounts to make payments to such other Lenders, each Lender’s
portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable
Percentage of such outstanding Revolving Loans, and (ii) except in the case of
any Incremental Term Loans, the Borrower shall be deemed to have repaid and
reborrowed all outstanding Revolving Loans as of the date of any increase in
the Commitments (with such reborrowing to consist of the Types of Revolving
Loans, with related Interest Periods if applicable, specified in a notice
delivered by the Borrower, in accordance with the requirements of Section
2.03).  The deemed payments made pursuant
to clause (ii) of the immediately preceding sentence shall be accompanied by
payment of all accrued interest on the amount prepaid and, in respect of each
Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant
to the provisions of Section 2.16 if the deemed payment occurs other than on
the last day of the related Interest Periods. 
The Incremental Term Loans (a) shall rank pari passu in right of payment
with the Revolving Loans, (b) shall not mature earlier than the Maturity Date
(but may have amortization prior to such date) and (c) shall be treated
substantially the same as (and in any event no more favorably than) the
Revolving Loans; provided that (i) the terms and conditions applicable
to any tranche of Incremental Term Loans maturing after the Maturity Date may
provide for different financial or other covenants applicable only during
periods after the Maturity Date and (ii) the Incremental Term Loans may be
priced differently than the Revolving Loans. 
Incremental Term Loans


 


40
















 


may be made hereunder pursuant to an amendment (an “Incremental
Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrower, each Augmenting Lender participating in
such tranche, if any, and the Administrative Agent.  The Incremental Term Loan Amendment may,
without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in
the reasonable opinion of the Administrative Agent, to effect the provisions of
this Section 2.20.


SECTION 2.21.  Market Disruption.  Notwithstanding the satisfaction of all
conditions referred to in Article II and Article IV with respect to any Credit
Event to be effected in any Foreign Currency, if (i) there shall occur on or
prior to the date of such Credit Event any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative Agent,
the Issuing Bank (if such Credit Event is a Letter of Credit) or the Required
Lenders make it impracticable for the Eurocurrency Borrowings or Letters of
Credit comprising such Credit Event to be denominated in the Agreed Currency
specified by the Borrower or (ii) an Equivalent Amount of such currency is not
readily calculable, then the Administrative Agent shall forthwith give notice
thereof to the Borrower, the Lenders and, if such Credit Event is a Letter of
Credit, the Issuing Bank, and such Credit Events shall not be denominated in
such Agreed Currency but shall, except as otherwise set forth in Section 2.07,
be made on the date of such Credit Event in Dollars, (a) if such Credit Event
is a Borrowing, in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Credit Event request or
Interest Election Request, as the case may be, as ABR Loans, unless the
Borrower notifies the Administrative Agent at least one Business Day before
such date that (i) it elects not to borrow on such date or (ii) it elects to
borrow on such date in a different Agreed Currency, as the case may be, in
which the denomination of such Loans would in the reasonable opinion of the
Administrative Agent and the Required Lenders be practicable and in an
aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Credit Event request or Interest
Election Request, as the case may be or (b) if such Credit Event is a Letter of
Credit, in a face amount equal to the Dollar Amount of the face amount
specified in the related request or application for such Letter of Credit,
unless the Borrower notifies the Administrative Agent at least one (1) Business
Day before such date that (i) it elects not to request the issuance of such
Letter of Credit on such date or (ii) it elects to have such Letter of Credit
issued on such date in a different Agreed Currency, as the case may be, in
which the denomination of such Letter of Credit would in the reasonable opinion
of the Issuing Bank, the Administrative Agent and the Required Lenders be
practicable and in face amount equal to the Dollar Amount of the face amount
specified in the related request or application for such Letter of Credit, as the
case may be.


SECTION 2.22.  Judgment Currency.  If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from the Borrower hereunder in
the currency expressed to be payable herein (the “specified currency”)
into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the specified currency with such other currency at the
Administrative Agent’s main New York City office on the Business Day preceding
that on which final, non-appealable judgment is given.  The obligations of each Borrower in respect
of any sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency,
be discharged only to the extent that on the Business Day following receipt by
such Lender or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender or the Administrative
Agent (as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency.  If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and


 


41





















 


notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be,
in the specified currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such
Lender under Section 2.18, such Lender or the Administrative Agent, as the case
may be, agrees to remit such excess to the Borrower.


SECTION 2.23.  Senior Debt.  The Borrower hereby designates all Secured
Obligations now or hereinafter incurred or otherwise outstanding, and agrees
that the Secured Obligations shall at all times constitute, senior indebtedness
and designated senior indebtedness, or terms of similar import, which are
entitled to the benefits of the subordination provisions of all Subordinated
Indebtedness.


ARTICLE III


Representations
and Warranties


The Borrower represents and
warrants to the Lenders that:


SECTION 3.01.  Organization;
Powers; Subsidiaries.  Each of
the Borrower and its Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.  Schedule
3.01 hereto (as supplemented from time to time) identifies each Subsidiary,
noting whether such Subsidiary is a Material Domestic Subsidiary or a Material
Foreign Subsidiary, the jurisdiction of its incorporation or organization, as
the case may be, the percentage of issued and outstanding shares of each class
of its capital stock or other equity interests owned by the Borrower and the
other Subsidiaries and, if such percentage is not 100% (excluding directors’
qualifying shares as required by law), a description of each class issued and
outstanding.  All of the outstanding
shares of capital stock and other equity interests of each Subsidiary are
validly issued and outstanding and fully paid and nonassessable and all such
shares and other equity interests indicated on Schedule 3.01 as owned by
the Borrower or another Subsidiary are owned, beneficially and of record, by
the Borrower or any Subsidiary free and clear of all Liens other than Liens
created by the Collateral Documents. 
There are no outstanding commitments or other obligations of the
Borrower or any Subsidiary to issue, and no options, warrants or other rights
of any Person to acquire, any shares of any class of capital stock or other
equity interests of the Borrower or any Subsidiary.


SECTION 3.02.  Authorization;
Enforceability.  The
Transactions are within the each Loan Party’s corporate powers and have been
duly authorized by all necessary corporate and, if required, shareholder
action.  The Loan Documents to which each
Loan Party is a party have been duly executed and delivered by such Loan Party
and constitute a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


SECTION 3.03.  Governmental
Approvals; No Conflicts.  The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except for
filings necessary to perfect Liens created pursuant to the Loan Documents, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or 


42





















 


any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, material agreement or other material instrument binding upon the
Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries, except Liens created
pursuant to the Loan Documents.


SECTION 3.04.  Financial Condition;
No Material Adverse Change. 
(a)  The Borrower has heretofore
furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for the fiscal year
ended December 31, 2006 reported on by Deloitte & Touche LLP, independent
public accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended June 30, 2007, certified by its chief financial
officer.  Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.


(b)  Since December 31, 2006, there has been no
material adverse change in the business, assets, operations or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.


SECTION 3.05.  Properties.  (a) 
Each of the Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.  There
are no Liens on any of the real or personal properties of the Borrower or any
Subsidiary except for Liens permitted by Section 6.02.


(b)  Each of the Borrower and its Subsidiaries
owns, or has the right to use, all trademarks, tradenames, copyrights, patents
and other intellectual property necessary for the conduct of its business, and
the use thereof by the Borrower and its Subsidiaries does not knowingly
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.


SECTION 3.06.  Litigation and
Environmental Matters.  (a)
Except for matters in existence on the Effective Date and disclosed in Schedule
3.06, there are no actions, suits, proceedings or investigations by or before
any arbitrator or Governmental Authority pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or
(ii) that involve this Agreement or the Transactions.  There are no labor controversies pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries (i) which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, or
(ii) that involve this Agreement or the Transactions.


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


43





















 


SECTION 3.07.  Compliance with Laws.  Each of the Borrower and its Subsidiaries is
in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


SECTION 3.08.  Investment Company
Status.  Neither the Borrower
nor any of its Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.


SECTION 3.09.  Taxes.  Each of the Borrower and its Subsidiaries
have timely filed or caused to be filed all Tax returns and reports required to
have been filed by them and have paid or caused to be paid all Taxes required
to have been paid by them, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such Subsidiary,
as applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not reasonably be expected to result in
a Material Adverse Effect.


SECTION 3.10.  ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
that have occurred and for which liability is reasonably expected to be
incurred by the Borrower or any of its Subsidiaries, could reasonably be
expected to result in a Material Adverse Effect.


SECTION 3.11.  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower or
any Subsidiary to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.


SECTION 3.12.  Federal
Reserve Regulations.  No part of the
proceeds of any Loan have been used or will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X.


 


SECTION 3.13.  Liens.  There are no Liens on any of the real or
personal properties of the Borrower or any Subsidiary except for Liens
permitted by Section 6.02.


 


SECTION 3.14.  No Default.  No Default or Event of Default has occurred
and is continuing.


SECTION 3.15.  No Burdensome Restrictions.  On the date hereof, the Borrower is not
subject to any Burdensome Restrictions except Burdensome Restrictions permitted
under Section 6.08.


SECTION 3.16.  Insurance.  The Borrower maintains, and has caused each
Subsidiary to maintain, with financially sound and reputable insurance
companies, insurance on all their real and personal property in such amounts,
subject to such deductibles and self-insurance retentions and covering such
properties and risks as are adequate and customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.


44





















 


SECTION 3.17.  Security Interest in Collateral.  The provisions of this Agreement and the
other Loan Documents create legal and valid Liens on all the Collateral in
favor of the Administrative Agent, for the benefit of the Holders of Secured
Obligations, and such Liens constitute perfected and continuing Liens on the
Collateral, (to the extent, in the case of assets covered by the Security
Agreement, that the Collateral consists of the type of property in which a
security interest may be perfected by possession or control, by filing a
financing statement under the UCC as enacted in any relevant jurisdiction or by
a filing of a grant of security interest in the respective form attached to the
Security Agreement in the United States Patent and Trademark Office or in the
United States Copyright Office, in each case as and to the extent provided in
the Security Agreement) securing the Secured Obligations, enforceable against
the applicable Loan Party and all third parties, and having priority over all
other Liens on the Collateral except in the case of (a) Permitted Encumbrances,
to the extent any such Permitted Encumbrances would have priority over the
Liens in favor of the Administrative Agent pursuant to any applicable law and
(b) Liens perfected only by possession to the extent the Administrative Agent
has not obtained or does not maintain possession of such Collateral.


ARTICLE IV


Conditions


SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):


(a)
 The Administrative Agent (or its
counsel) shall have received from (i) each party hereto either (A) a
counterpart of this Agreement signed on behalf of such party or (B) written
evidence satisfactory to the Administrative Agent (which may include telecopy
or electronic transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement and (ii) duly executed
copies of the Loan Documents and such other legal opinions, certificates,
documents, instruments and agreements as the Administrative Agent shall
reasonably request in connection with the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel
and as further described in the list of closing documents attached as Exhibit
E.


(b)
 The Administrative Agent shall have
received a favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of (i) White & Case LLP, counsel
for the Loan Parties, substantially in the form of Exhibit B-1 and (ii) Peter
Millones, General Counsel to the Borrower substantially in the form of Exhibit
B-2, and covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Administrative Agent shall reasonably request.  The Borrower hereby requests such counsel to
deliver such opinion.


(c)
 The Administrative Agent shall have
received such documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization, existence and good
standing of the initial Loan Parties, the authorization of the Transactions and
any other legal matters relating to such Loan Parties, the Loan Documents or
the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel and as further described in the list of
closing documents attached as Exhibit E.


45





















 


(d)
 The Administrative Agent shall have
received a certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section 4.02.


(e)
 The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.


(f)
 The Administrative Agent shall have
received the results of a recent lien search in each of the jurisdictions where
the Loan Parties are organized, and such search shall reveal no liens on any of
the assets of the Loan Parties except for liens permitted by Section 6.02 or
discharged on or prior to the Effective Date pursuant to a pay-off letter or
other documentation satisfactory to the Administrative Agent.


(g)
 The Administrative Agent shall have
received (i) the certificates representing the shares of certificated Equity
Interests pledged pursuant to the Security Agreement, together with an undated
stock power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof and (ii) each promissory note (if any) pledged
to the Administrative Agent pursuant to the Security Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof.


(h)
 Each document (including any UCC
financing statement) required by the Collateral Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Holders of Secured Obligations, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 6.02), shall
be in proper form for filing, registration or recordation.


(i)
 The Administrative Agent shall have
received evidence of insurance coverage in form, scope, and substance
reasonably satisfactory to the Administrative Agent and otherwise in compliance
with the terms of Section 5.05.


The Administrative Agent
shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:


(a)  The representations and warranties of the
Borrower set forth in this Agreement shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.


(b)  At the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred and be
continuing.


Each Borrowing and each
issuance, amendment, renewal or extension of a Letter of Credit shall be deemed
to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (a) and (b) of this Section.


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ARTICLE V


Affirmative Covenants


Until the Commitments have
expired or been terminated and the principal of and interest on each Loan and
all fees payable hereunder shall have been paid in full and all Letters of
Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed, the Borrower covenants and agrees with the Lenders that:


SECTION 5.01.  Financial Statements
and Other Information.  The
Borrower will furnish to the Administrative Agent for distribution to each
Lender:


(a)  within ninety (90) days after the end of each
fiscal year of the Borrower, its audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Deloitte & Touche LLP or
other independent public accountants of recognized national standing (without a
“going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;


(b)  within forty-five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower,
its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;


(c)  concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a Financial Officer
of the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.10 and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;


(d)  concurrently with any delivery of financial
statements under clause (a) above, a certificate of the accounting firm that reported
on such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines); and


(e)  promptly following any request therefor, such
other information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the terms of
this Agreement, as the Administrative Agent or any Lender (acting through the
Administrative Agent) may reasonably request.


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Documents required to be delivered pursuant
to clauses (a) and (b) or (e) of this Section 5.01 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which such documents are posted on the Borrower’s behalf on
IntraLinksTM or a substantially similar electronic platform, 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); or (ii)
on which such documents are filed for public availability on the U.S.
Securities and Exchange Commission’s Electronic Data Gathering and Retrieval
System.


 


SECTION 5.02.  Notices of Material
Events.  The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:


(a)  the occurrence of any Default;


(b)
 the filing or commencement of any
action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting the Borrower or any Subsidiary thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect; and


(c)
 the occurrence of any ERISA Event that,
alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect.


Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


SECTION 5.03.  Existence; Conduct
of Business.  The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the material rights, qualifications, licenses, permits, material
privileges, franchises, governmental authorizations and intellectual property
rights necessary to the conduct of its business, and maintain all requisite authority
to conduct its business in each jurisdiction in which its business is
conducted; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.


SECTION 5.04.  Payment of Tax Obligations.  The Borrower will, and will cause each of its
Subsidiaries to, pay its Tax obligations and liabilities, that, if not paid,
could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.


SECTION 5.05.  Maintenance of
Properties; Insurance.  The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain with
financially sound and reputable carriers insurance in such amounts (with no
greater risk retention) and against such risks (including loss or damage by
fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement,
and other criminal activities; business interruption; and general liability)
and such other hazards, as is customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the
same or similar locations.  The Borrower
will furnish to the Lenders, upon request of the Administrative Agent,
information in reasonable detail as to the insurance so maintained.  The Borrower shall deliver to the
Administrative Agent endorsements (x) to all “All Risk” physical 


48





















 


damage insurance policies on all of the Loan Parties’
tangible personal property and assets and business interruption insurance policies
naming the Administrative Agent as lender loss payee, and (y) to all general
liability and other liability policies naming the Administrative Agent an
additional insured.  In the event the
Borrower or any of its Subsidiaries at any time or times hereafter shall fail
to obtain or maintain any of the policies or insurance required herein or to
pay any premium in whole or in part relating thereto, then the Administrative
Agent, after notice to the Borrower but without waiving or releasing any obligations
or resulting Default hereunder, may at any time or times thereafter (but shall
be under no obligation to do so) obtain and maintain such policies of insurance
and pay such premiums and take any other action with respect thereto which the
Administrative Agent deems advisable. 
All sums so disbursed by the Administrative Agent shall constitute part
of the Obligations, payable as provided in this Agreement.  The Borrower will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any material portion
of the Collateral or interest therein under power of eminent domain or by
condemnation or similar proceeding.


SECTION 5.06.  Books and Records;
Inspection Rights.  The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities.  The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably
requested.  The Borrower acknowledges
that the Administrative Agent, after exercising its rights of inspection, may
prepare and distribute to the Lenders certain reports pertaining to the
Borrower and its Subsidiaries’ assets for internal use by the Administrative
Agent and the Lenders.


SECTION 5.07.  Compliance with Laws.  The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property (including without
limitation Environmental Laws), except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.


SECTION 5.08.  Use of Proceeds.  The proceeds of the Loans will be used only
to finance the working capital needs, and for general corporate purposes, of
the Borrower and its Subsidiaries.  No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X.


SECTION 5.09.  Subsidiary
Guarantors; Pledges; Additional Collateral; Further Assurances.


(a)  As promptly as possible but in any event
within thirty (30) days (or such later date as may be agreed upon by the
Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary
qualifies independently as, or is designated by the Borrower or the
Administrative Agent as, a Subsidiary Guarantor pursuant to the definitions of “Material
Domestic Subsidiary” and “Subsidiary Guarantor”, the Borrower shall provide the
Administrative Agent with written notice thereof and shall cause each such
Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the
Administrative Agent a joinder to the Subsidiary Guaranty and the Security Agreement
(in each case in the form contemplated thereby) pursuant to which such
Subsidiary agrees to be bound by the terms and provisions thereof, such
Subsidiary Guaranty and the Security Agreement to be accompanied by appropriate
corporate resolutions, other corporate documentation and, if reasonably
requested, legal opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


49





















 


(b)  The Borrower will cause, and will cause each
other Loan Party to cause, all of its owned property (whether real, personal,
tangible, intangible, or mixed but excluding Excluded Assets) to be subject at
all times to first priority, perfected Liens in favor of the Administrative
Agent for the benefit of the Holders of Secured Obligations to secure the
Secured Obligations in accordance with the terms and conditions of the
Collateral Documents, subject in any case to Liens permitted by Section
6.02.  Without limiting the generality of
the foregoing, the Borrower will (i) cause the Applicable Pledge Percentage of
the issued and outstanding Equity Interests of each Pledge Subsidiary directly
owned by the Borrower or any other Loan Party to be subject at all times to a
first priority, perfected Lien in favor of the Administrative Agent to secure
the Secured Obligations in accordance with the terms and conditions of the
Collateral Documents or such other security documents as the Administrative
Agent shall reasonably request and (ii) will, and will cause each Subsidiary
Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real
Property owned by the Borrower or such Guarantor to the extent, and within such
time period as is, reasonably required by the Administrative Agent.  Notwithstanding the foregoing, (i) no such
Mortgages and Mortgage Instruments are required to be delivered hereunder until
December 26, 2007 or such later date as the Administrative Agent may agree in
the exercise of its reasonable discretion with respect thereto and (ii) no such
pledge agreement in respect of the Equity Interests of a Foreign Subsidiary
shall be required hereunder (A) until December 26, 2007 or such later date as
the Administrative Agent may agree in the exercise of its reasonable discretion
with respect thereto, and (B) to the extent the Administrative Agent or its
counsel determines that such pledge would not provide material credit support
for the benefit of the Holders of Secured Obligations pursuant to legally
valid, binding and enforceable pledge agreements.


(c)  Without limiting the foregoing, the Borrower
will, and will cause each Subsidiary to, execute and deliver, or cause to be
executed and delivered, to the Administrative Agent such documents, agreements
and instruments, and will take or cause to be taken such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents and such other actions or
deliveries of the type required by Section 4.01, as applicable), which may be
required by law or which the Administrative Agent may, from time to time,
reasonably request to ensure perfection and priority of the Liens created or
intended to be created by the Collateral Documents, all at the expense of the
Borrower.


(d)  If any assets (including any real property or
improvements thereto or any interest therein) are acquired by a Loan Party
after the Effective Date (other than Excluded Assets and assets constituting
Collateral under the Security Agreement that become subject to the Lien in
favor of the Security Agreement upon acquisition thereof), the Borrower will
notify the Administrative Agent thereof, and, if requested by the
Administrative Agent, the Borrower will cause such assets to be subjected to a
Lien securing the Secured Obligations and will take, and cause the other Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (c) of this Section, all at the expense of the Borrower.


ARTICLE VI


Negative Covenants


Until the Commitments have
expired or terminated and the principal of and interest on each Loan and all
fees  payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:


 


50
















 


SECTION 6.01.  Indebtedness.  The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness
(it being understood and agreed that accrual or payment in kind in respect of
Indebtedness shall not constitute an incurrence of additional Indebtedness),
except:


(a)  the Secured Obligations;


(b)
 Indebtedness existing on the date hereof
and set forth in Schedule 6.01 and extensions, renewals, refinancings
and replacements of any such Indebtedness (“Refinancing Indebtedness”); provided,
however, that such Refinancing Indebtedness (A) shall not exceed in
aggregate principal amount the aggregate principal amount of the Indebtedness
being extended, renewed, refinanced, or replaced together with interest accrued
thereon and the payment of fees and expenses incurred in connection with such
extension, renewal, refinancing or replacement, (B) to the extent such
Refinancing Indebtedness extends, renews or replaces Indebtedness subordinated
to the Secured Obligations or the Guaranty of any Subsidiary Guarantor, such
Refinancing Indebtedness is subordinated to the Secured Obligations or such
Guaranty at least to the same extent as the Indebtedness being extended,
renewed or replaced, and (C) shall not include (1) Indebtedness of a Subsidiary
that is not a Subsidiary Guarantor that refinances Indebtedness of the Borrower
or (2) Indebtedness of a Subsidiary that is not a Subsidiary Guarantor that
refinances Indebtedness of a Subsidiary Guarantor;


(c)
 Indebtedness of the Borrower or any
Subsidiary to the Borrower or any Subsidiary; provided that such Indebtedness
is an Investment permitted by Section 6.04(d) or Section 6.04(p);


(d)
 Guarantees by the Borrower of
Indebtedness or other obligations of any Subsidiary and by any Subsidiary of
Indebtedness or other obligations of the Borrower or any other Subsidiary;


(e)
 Indebtedness of the Borrower or any
Subsidiary incurred to finance the acquisition, construction or improvement of
any assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i)
such Indebtedness is incurred prior to or within one hundred and eighty (180)
days after such acquisition or the completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness permitted
by this clause (e) shall not exceed $25,000,000 at any time outstanding;


(f)
 Indebtedness of the Borrower or any
Subsidiary (i) as an account party in respect of letters of credit or (ii)
constituting obligations in respect of Swap Agreements permitted under Section
6.05;


(g)
 (i) Indebtedness of any Subsidiary and
(ii) Indebtedness of the Borrower or any Subsidiary secured by a Lien on any
asset of the Borrower or any Subsidiary; provided that the aggregate
outstanding principal amount of Indebtedness permitted by this clause (g) shall
not in the aggregate exceed $35,000,000 at any time; and


(h)
 unsecured Indebtedness of the Borrower
and the Subsidiary Guarantors in an aggregate principal amount not exceeding
$50,000,000 at any time outstanding; provided that no such Dollar
limitation shall apply if the Borrower has complied with the Adjusted Covenant
Requirement.


 


51





















 


SECTION 6.02.  Liens.  The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:


(a)  Liens created pursuant to any Loan Document;


(b)  Permitted Encumbrances;


(c)
 any Lien on any property or asset of the
Borrower or any Subsidiary existing on the date hereof and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof; or any Liens issued to so extend, renew,
refinance or replace such Liens (“Refinancing Liens”); provided, however,
that such Refinancing Liens (A) shall not exceed in aggregate principal amount
the aggregate principal amount of the Liens being extended, renewed,
refinanced, or replaced together with interest accrued thereon and the payment
of fees and expenses incurred in connection with such extension, renewal,
refinancing or replacement, (B) to the extent such Refinancing Liens extend,
renew or replace Liens subordinated to the Secured Obligations or the Guaranty
of any Subsidiary Guarantor, such Refinancing Liens are subordinated to the
Secured Obligations or such Guaranty at least to the same extent as the Liens
being extended, renewed or replaced, and (C) shall not include (1) Liens of a
Subsidiary that is not a Subsidiary Guarantor that refinances Liens of the
Borrower or (2) Liens of a Subsidiary that is not a Subsidiary Guarantor that
refinances Liens of a Guarantor;


(d)
 any Lien existing on any property or
asset prior to the acquisition thereof by the Borrower or any Subsidiary or
existing on any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided
that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower or
any Subsidiary and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;


(e)
 Liens on assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided
that (i) such security interests secure Indebtedness permitted by clause (e) of
Section 6.01, (ii) such security interests and the Indebtedness secured thereby
are incurred prior to or within one hundred and eighty (180) days after such
acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security
interests shall not apply to any other property or assets of the Borrower or
any Subsidiary; and


(f)
 Liens on assets of the Borrower and its
Subsidiaries not otherwise permitted above so long as the aggregate principal
amount of the Indebtedness subject to such Liens is permitted by Section
6.01(g);


(g)
 (x) licenses, sublicenses, leases or
subleases granted by the Borrower or any of its Subsidiaries to other Persons
not materially interfering with the conduct of the business of the Borrower or
any of its Subsidiaries and (y) any interest or title of a lessor, sublessor or
licensor 


52





















 


under any lease or license
agreement permitted by this Agreement to which the Borrower or any of its
Subsidiaries is a party;


(h)
 Liens arising from precautionary UCC
financing statement filings regarding operating leases entered into in the
ordinary course of business;


(i)
 statutory and common law landlords’
liens under leases to which the Borrower or any of its Subsidiaries is a party;
and


(j)
 additional Liens of the Borrower or any
of its Subsidiaries not otherwise permitted by this Section 6.02 that do not
secure obligations in excess of $10,000,000 in the aggregate for all such Liens
at any time.


SECTION 6.03.  Fundamental Changes
and Asset Sales.  (a) The
Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any of its assets (including
pursuant to a Sale and Leaseback Transaction), or any of the Equity Interests
of any of its Subsidiaries (in each case, whether now owned or hereafter
acquired), or liquidate or dissolve, except:


(i)  any Person may merge into
the Borrower in a transaction in which the Borrower is the surviving
corporation;


(ii)  any Subsidiary may merge
into a Loan Party in a transaction in which the surviving entity is such Loan
Party (provided that any such merger involving the Borrower must result in the
Borrower as the surviving entity) and any Subsidiary which is not a Loan Party
may merge into another Subsidiary which is not a Loan Party;


(iii)  any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to another Subsidiary;
provided that such sale, transfer, lease or disposition is an Investment
permitted by Section 6.04(d) or Section 6.04(p);


(iv)  the Borrower or any
Subsidiary may sell assets pursuant to Sale and Leaseback Transactions
permitted under Section 6.09;


(v)  the Borrower and its
Subsidiaries may (A) sell inventory in the ordinary course of business, (B)
effect sales, trade-ins or dispositions of used equipment for value in the
ordinary course of business consistent with past practice, (C) enter into
licenses of technology in the ordinary course of business, (D) make any other
sales, transfers, leases or dispositions that, together with all other property
of the Borrower and its Subsidiaries previously leased, sold or disposed of as
permitted by this clause (D) during any fiscal year of the Borrower, does not
exceed 15% of Consolidated Tangible Assets (determined as of the end of the
most recently completed fiscal quarter of the Borrower), and (E) sell cash
and/or Permitted Investments in the ordinary course of business; and


(vi)  any Subsidiary may liquidate
or dissolve if (A) the Borrower reasonably determines in good faith that such
liquidation or dissolution is in the corporate interests of the Borrower and
(B) the proceeds of such dissolution are transferred to the Borrower or a
Subsidiary.


(b)  The Borrower will not engage to any material
extent in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date of execution of this 


53





















 


Agreement and businesses reasonably related thereto
(it being understood that any travel related or on-line business shall be
considered to be such a same or similar line of business).


(c)  The Borrower will not, nor will it permit any
of its Subsidiaries to, change its fiscal year from the basis in effect on the
Effective Date.


SECTION 6.04.  Investments, Loans,
Advances, Guarantees and Acquisitions.  The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any Person or any assets of any other Person constituting a
business unit, except:


(a)  Permitted Investments;


(b)  Permitted Acquisitions;


(c)  investments by the Borrower and its
Subsidiaries existing on, or required to be made pursuant to commitments
existing on, the date hereof;


(d)  investments, loans or advances made by the
Borrower in or to any Subsidiary and made by any Subsidiary to the Borrower or
any other Subsidiary (provided that not more than $15,000,000 in investments,
loans or advances or capital contributions may be made and remain outstanding,
during the term of this Agreement, by any Loan Party to a Subsidiary which is
not a Loan Party);


(e)  Guarantees constituting Indebtedness
permitted by Section 6.01;


(f)  accounts receivables owing to the Borrower or
any of its Subsidiaries, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms
of the Borrower or such Subsidiary;


(g)  investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;


(h)  obligations
of officers and employees of the Borrower or any of its Subsidiaries in
connection with such officers’ and employees’ acquisition of shares of common
stock (so long as no cash is actually advanced by the Borrower or any of its
Subsidiaries in connection with the acquisition of such obligations);


(i)  Swap
Agreements entered into by the Borrower to the extent permitted by Section
6.05;


(j)  promissory
notes and other non-cash consideration received by the Borrower or any of its
Subsidiaries in connection with any asset sale permitted by Section 6.03(iii);


54





















 


(k)  advances made the Borrower or any of its
Subsidiaries in the form of a prepayment of expenses to vendors, suppliers and
trade creditors consistent with their past practices, so long as such expenses
were incurred in the ordinary course of business of the Borrower or such
Subsidiary;


(l)  loans and advances to officers and employees
of the Borrower or any of its Subsidiaries for moving, relocation and travel
expenses and other similar expenditures, in each case in the ordinary course of
business in an aggregate amount not to exceed $5,000,000 at any time
(determined without regard to any write-downs or write-offs of such loans and
advances);


(m)  investments consisting of the redemption or
purchase of minority interests existing on the date hereof in priceline.com
International;


(n)  investments consisting of the redemption or
purchase of minority interests in Subsidiaries, provided that the
aggregate consideration paid in respect thereof does not exceed the unused
portion of the Permitted Acquisition Amount pursuant to the definition of
Permitted Acquisition;


(o)  investments constituting Restricted Payments
permitted by Section 6.07; and


(p)  any other investment, loan or advance (other
than Acquisitions) so long as the aggregate outstanding amount of all such
investments, loans and advances does not exceed $35,000,000 during the term of
this Agreement, provided that no such Dollar limitation shall apply if the
Borrower has complied with the Adjusted Covenant Requirement.


SECTION 6.05.  Swap Agreements.  The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any Swap Agreement, except Swap
Agreements entered into for bona fide hedging purposes and not for speculative
purposes.


SECTION 6.06.  Transactions with Affiliates.  The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries and (c) any
Restricted Payment permitted by Section 6.07.


SECTION 6.07.  Restricted
Payments.  The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Borrower
may declare and pay dividends with respect to its Equity Interests payable
solely in additional shares of its common stock, (b) Subsidiaries may declare
and pay dividends ratably with respect to their Equity Interests, (c) the Borrower
may make Restricted Payments pursuant to and in accordance with stock option
plans or other benefit plans for management or employees of the Borrower and
its Subsidiaries, (d) the Borrower and its Subsidiaries may repurchase or
redeem interests in Subsidiaries as joint ventures to which they are party to
the extent that such repurchase or redemption shall be permitted under Section
6.04 and (e) the Borrower and its Subsidiaries may make any other Restricted
Payment so long as no Default or Event of Default has occurred and is
continuing prior to making such Restricted Payment or would arise after giving
effect (including pro forma effect) thereto and the aggregate amount of such
Restricted Payments does not exceed $50,000,000 provided that no such Dollar
limitation shall apply if the Borrower has complied with the Adjusted Covenant
Requirement.


 


SECTION 6.08.  Restrictive
Agreements.  The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other 


 


55





















 


arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to holders of
its Equity Interests or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (ii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iii) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness,
(iv) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment or subletting thereof (v)
customary provisions restricting assignment of any licens­ing agreement (in
which the Borrower or any of its Subsidiaries is the licensee) or other contract
entered into by the Borrower or any of its Subsidiaries in the ordinary course
of business, (vi) restric­tions on the transfer of any asset pending the
close of the sale of such asset, and (vii) restrictions on the transfer of
any asset subject to a Lien permitted by Section 6.02(c).


 


SECTION 6.09.  Sale
and Leaseback Transactions.  The
Borrower shall not, nor shall it permit any Subsidiary to, enter into any Sale
and Leaseback Transaction, other than Sale and Leaseback Transactions in
respect of which the net cash proceeds received in connection therewith does
not exceed $10,000,000 in the aggregate during any fiscal year of the Borrower,
determined on a consolidated basis for the Borrower and its Subsidiaries.


 


SECTION 6.10.  Financial Covenants.


(a)  Maximum Leverage Ratio.   The Borrower will not permit the ratio (the “Leverage
Ratio”), determined as of the end of each of its fiscal quarters set forth
below, of (i) Consolidated Total Indebtedness to (ii) Consolidated EBITDA for
the period of four (4) consecutive fiscal quarters ending with the end of such
fiscal quarter, all calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be greater than the ratio set forth opposite such fiscal
quarter:




	
  Fiscal Quarter Ending

  	
   

  	
  Maximum Leverage Ratio

  	
   

  
	
  September 30, 2007 through March 31, 2008

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  June 30, 2008

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  September 30, 2008

  	
   

  	
  4.25 to 1.00

  	
   

  
	
  December 31, 2008 and thereafter

  	
   

  	
  4.00 to 1.00

  	
   

  






 


(b)  Minimum Coverage Ratio.  The Borrower will not permit the ratio (the “Coverage
Ratio”), determined as of the end of each of its fiscal quarters ending on
and after September 30, 2007, of (i) Consolidated EBITDA minus Capital
Expenditures  to (ii) Consolidated
Interest Expense paid or payable in cash, in each case for the period of four
(4) consecutive fiscal quarters ending with the end of such fiscal quarter, all
calculated for the Borrower and its Subsidiaries on a consolidated basis, to be
less than 3.5 to 1.0.


ARTICLE II


 


Events
of Default


If any of the following events
(“Events of
Default”) shall occur:


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(a)  the Borrower shall fail to pay any principal
of any Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;


(b)  the Borrower shall fail to pay any interest on
any Loan or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of five (5) Business Days;


(c)  any representation or warranty made or deemed
made by or on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any other Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;


(d)  the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;


(e)  the Borrower or any Subsidiary Guarantor, as
applicable, shall fail to observe or perform any covenant, condition or
agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article) or any other Loan Document, and such failure
shall continue unremedied for a period of thirty (30) days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given at
the request of any Lender);


(f)  the Borrower or any Subsidiary shall fail to
make any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable;


(g)  any event or condition occurs that results in
any Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided
that this clause (g) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;


(h)  an involuntary proceeding shall be commenced
or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any Significant
Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for sixty (60) days or
an order or decree approving or ordering any of the foregoing shall be entered;


(i)  the Borrower or any Significant Subsidiary
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any Subsidiary or for a 


57





















 


substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;


(j)  the Borrower or any Significant Subsidiary
shall become unable, admit in writing its inability or fail generally to pay
its debts as they become due;


(k)  one or more judgments for the payment of
money in an aggregate amount in excess of $15,000,000 shall be rendered against
the Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of sixty (60) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;


(l)  an ERISA Event shall have occurred that, when
taken together with all other ERISA Events that have occurred and for which
liability is reasonably expected to be incurred by the Borrower or any
Subsidiary, could reasonably be expected to result in a Material Adverse
Effect;


(m)  a Change in Control shall occur;


(n)  any material provision of any Loan Document
for any reason ceases to be valid, binding and enforceable in accordance with
its terms or the Borrower or any Subsidiary shall so assert in writing; or


(o)  any Collateral Document shall for any reason
fail to create a valid and perfected first priority security interest in any
material portion of the Collateral purported to be covered thereby or the
Borrower or any Subsidiary shall so assert in writing, except as permitted by
the terms of any Loan Document and other than as a result of actions, inactions
or omissions by the Administrative Agent or any Lender.


then, and in every such
event (other than an event with respect to the Borrower described in clause (h)
or (i) of this Article), and at any time thereafter during the continuance of
such event, with consent of the Required Lenders, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different
times:  (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, and (ii) declare the
Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become  due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other Secured
Obligations accrued hereunder and under the other Loan Documents, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.  Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and at the request
of the Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Loan Documents or at law or equity, including
all remedies provided under the UCC.


58

















 


ARTICLE VIII


The
Administrative Agent


Each of the Lenders and the
Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf,
including  execution of the other Loan
Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.


The bank serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.


The Administrative Agent
shall not have any duties or obligations except those expressly set forth in
the Loan Documents.  Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not 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
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02) or in
the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or in connection with any Loan Document,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, (v) the creation, perfection or priority of
Liens on the Collateral or the existence of the Collateral, or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. 
The Administrative 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 it in
accordance with the advice of any such counsel, accountants or experts.


59

















 


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


Subject to the appointment
and acceptance of a successor Administrative Agent as provided in this
paragraph, the Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. 
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor.  If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank.  Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.


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


None of the Lenders, if any,
identified in this Agreement as a Syndication Agent or Co-Documentation Agent
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of such
Lenders shall have or be deemed to have a fiduciary relationship with any
Lender.  Each Lender hereby makes the
same acknowledgments with respect to the relevant Lenders in their respective
capacities as Syndication Agent or Co-Documentation Agents, as applicable, as
it makes with respect to the Administrative Agent in the preceding paragraph.


Except with respect to the
exercise of setoff rights of any Lender, in accordance with Section 9.08, the
proceeds of which are applied in accordance with this Agreement, each Lender
agrees that it will not take any action, nor institute any actions or
proceedings, against the Borrower or with respect to any Loan Document, without
the prior written consent of the Required Lenders or, as may be provided in
this Agreement or the other Loan Documents, with the consent of the
Administrative Agent.


The Lenders are not partners
or co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. 
The Administrative Agent shall have the exclusive right on behalf of the



60

















 


Lenders
to enforce the payment of the principal of and interest on any Loan after the
date such principal or interest has become due and payable pursuant to the
terms of this Agreement.


In its capacity, the
Administrative Agent is a “representative” of the Holders of Secured
Obligations within the meaning of the term “secured party” as defined in the
New York Uniform Commercial Code.  Each
Lender authorizes the Administrative Agent to enter into each of the Collateral
Documents to which it is a party and to take all action contemplated by such
documents.  Each Lender agrees that no
Holder of Secured Obligations (other than the Administrative Agent) shall have
the right individually to seek to realize upon the security granted by any
Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Administrative Agent for the benefit of
the Holders of Secured Obligations upon the terms of the Collateral
Documents.  In the event that any
Collateral is hereafter pledged by any Person as collateral security for the
Secured Obligations, the Administrative Agent is hereby authorized, and hereby
granted a power of attorney, to execute and deliver on behalf of the Holders of
Secured Obligations any Loan Documents necessary or appropriate to grant and
perfect a Lien on such Collateral in favor of the Administrative Agent on
behalf of the Holders of Secured Obligations. 
The Lenders hereby authorize the Administrative Agent, at its option and
in its discretion, to release any Lien granted to or held by the Administrative
Agent upon any Collateral (i) as described in Section 9.02(d); (ii) as
permitted by, but only in accordance with, the terms of the applicable Loan
Document; or (iii) if approved, authorized or ratified in writing by the
Required Lenders, unless such release is required to be approved by all of the
Lenders hereunder.  Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release particular types or items of
Collateral pursuant hereto.  Upon any
sale or transfer of assets constituting Collateral which is permitted pursuant
to the terms of any Loan Document, or consented to in writing by the Required
Lenders or all of the Lenders, as applicable, and upon at least five Business
Days’ prior written request by the Borrower to the Administrative Agent shall
(and is hereby irrevocably authorized by the Lenders to) execute such documents
as may be necessary to evidence the release of the Liens granted to the
Administrative Agent for the benefit of the Holders of Secured Obligations
herein or pursuant hereto upon the Collateral that was sold or transferred;
provided, however, that (i) the Administrative Agent shall not be required to
execute any such document on terms which, in the Administrative Agent’s
opinion, would expose the Administrative Agent to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Secured Obligations or any Liens upon (or
obligations of the Borrower or any Subsidiary in respect of) all interests
retained by the Borrower or any Subsidiary, including (without limitation) the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral.


The Borrower, on its behalf
and on behalf of its Subsidiaries, and each Lender, on its behalf and on the
behalf of its affiliated Holders of Secured Obligations, hereby irrevocably
constitute the Administrative Agent as the holder of an irrevocable power of
attorney (fondé de pouvoir within the meaning of
Article 2692 of the Civil Code of Québec) in order to hold hypothecs and
security granted by the Borrower or any Subsidiary on property pursuant to the
laws of the Province of Quebec to secure obligations of the Borrower or any
Subsidiary under any bond, debenture or similar title of indebtedness issued by
the Borrower or any Subsidiary in connection with this Agreement, and agree
that the Administrative Agent may act as the bondholder and mandatary with
respect to any bond, debenture or similar title of indebtedness that may be
issued by the Borrower or any Subsidiary and pledged in favor of the Holders of
Secured Obligations in connection with this Agreement.  Notwithstanding the provisions of Section 32
of the An Act respecting the special powers of legal persons (Quebec), JPMorgan
Chase Bank, National Association as Administrative Agent may acquire and be the
holder of any bond issued by the Borrower or any Subsidiary in connection with
this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond
issued under any deed of hypothec by the Borrower or any Subsidiary).


61
















 


The Administrative Agent is
hereby authorized to execute and deliver any documents necessary or appropriate
to create and perfect the rights of pledge for the benefit of the Holders of
Secured Obligations including a right of pledge with respect to the entitlements
to profits, the balance left after winding up and the voting rights of the
Borrower as ultimate parent of any subsidiary of the Borrower which is
organized under the laws of the Netherlands and the Equity Interests of which
are pledged in connection herewith (a “Dutch Pledge”).  Without prejudice to the provisions of this
Agreement and the other Loan Documents, the parties hereto acknowledge and
agree with the creation of parallel debt obligations of the Borrower or any
relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel
Debt”), including that any payment received by the Administrative Agent in
respect of the Parallel Debt will — conditionally upon such payment not
subsequently being avoided or reduced by virtue of any provisions or enactments
relating to bankruptcy, insolvency, preference, liquidation or similar laws of
general application — be deemed a satisfaction of a pro rata portion of the
corresponding amounts of the 
Obligations, and any payment to the Holders of Secured Obligations in
satisfaction of the Obligations shall — conditionally upon such payment not
subsequently being avoided or reduced by virtue of any provisions or enactments
relating to bankruptcy, insolvency, preference, liquidation or similar laws of
general application — be deemed as satisfaction of the corresponding amount of
the Parallel Debt.  The parties hereto
acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by
the Administrative Agent is not effective until its rights under the Parallel
Debt are assigned to the successor Administrative Agent.


The Administrative Agent
shall administer any Collateral Document which is governed by German law and is
a pledge (Pfandrecht) or otherwise transferred to
any Holder of Secured Obligations under an accessory security right (akzessorische Sicherheit) in the name and on behalf of the
Holder of Secured Obligations.  In
relation to any Collateral Document governed by the laws of Germany, each party
hereby authorizes the Administrative Agent to accept as its representative any
pledge or other creation of any accessory security right made to such party in
relation to this Agreement and to agree to and execute on its behalf as its
representative amendments, supplements and other alterations to any Collateral
Document governed by the laws of Germany which creates a pledge or any other
accessory security right and to release on behalf of such party any Collateral
Document governed by the laws of Germany in accordance with the provisions
herein and/or the provisions in the relevant German law governed pledge
agreement.


ARTICLE IX


 


Miscellaneous


SECTION 9.01.  Notices.  (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (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 telecopy, as
follows:


(i)  if to the Borrower, to it at
priceline.com Incorporated, 800 Connecticut Avenue, Norwalk, Connecticut 06854,
Attention of Robert J. Mylod Jr., Chief Financial Officer (Telecopy No. (203)
299-8962; Telephone No. (203) 299-8301);


(ii)  if to the Administrative
Agent, to JPMorgan Chase Bank, National Association, Loan and Agency Services
Group, 10 South Dearborn, 7th Floor, Chicago, Illinois 60603,
Attention of Mi Y. Kim (Telecopy No.(312) 385-7098), with a copy to JPMorgan
Chase Bank, National Association, 277 Park Avenue, 23rd Floor, New
York, New York 10172, Attention of David Gibbs (Telecopy No. (646) 534-3078);


 


62





















 


(iii)  if to the Issuing Bank, to
it at JPMorgan Chase Bank, National Association, Loan and Agency Services
Group, 10 South Dearborn, 7th Floor, Chicago, Illinois 60603,
Attention of Mi Y. Kim (Telecopy No.(312) 385-7098));


(iv)  if to the Swingline Lender,
to it at JPMorgan Chase Bank, National Association, Loan and Agency Services
Group, 10 South Dearborn, 7th Floor, Chicago, Illinois 60603,
Attention of Mi Y. Kim (Telecopy No.(312) 385-7098)); and


(v)  if to any other Lender, to
it at its address (or telecopy number) set forth in its Administrative
Questionnaire.


(b)  Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender.  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.


(c)  Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto.  All notices and
other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt.


SECTION 9 .02.  Waivers; Amendments.  (a)  No
failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise
have.  No waiver of any provision of any
Loan Document or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.


(b) Except as provided in
Section 2.20 with respect to an Incremental Term Loan Amendment, neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided
that no such agreement shall (i) increase 
the Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon (other than the waiver of default interest), or reduce
any fees payable hereunder, without the written consent of each Lender directly
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender directly affected thereby, (iv) change Section
2.18(b) or (d) in a manner that would alter the pro rata sharing of 


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payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender (it being understood that, solely with the
consent of the parties prescribed by Section 2.20 to be parties to an
Incremental Term Loan Amendment, Incremental Term Loans may be included in the
determination of Required Lenders on substantially the same basis as the
Commitments and the Revolving Loans are included on the Effective Date), (vi)
release all or substantially all of the Subsidiary Guarantors from their
obligations under the Subsidiary Guaranty, without the written consent of each
Lender or (viii) except as provided in clause (c) of this Section or in any
Collateral Document, release all or substantially all of the Collateral,
without the written consent of each Lender; provided
further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent,
the Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank or the Swingline Lender,
as the case may be.


(c)  Notwithstanding the foregoing, this Agreement
and any other Loan Document may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower to each relevant Loan Document (x) to add Incremental Term Loans to
share ratably in the benefits of this Agreement and the other Loan Documents
with the Revolving Loans and the accrued interest and fees in respect thereof
and (y) to include appropriately the Lenders holding such Incremental Term Loans
in any determination of the Required Lenders and Lenders.


(d)  The Lenders hereby irrevocably authorize the
Administrative Agent, at its option and in its sole discretion, to (1) release
any Liens granted to the Administrative Agent by the Loan Parties on any
Collateral (i) upon the termination of the all Commitments, payment and
satisfaction in full in cash of all Secured Obligations (other than
Unliquidated  Obligations), and the cash
collateralization of all Unliquidated Obligations in a manner satisfactory to
the Administrative Agent, (ii) constituting property being sold or disposed of
if the Borrower certifies to the Administrative Agent that the sale or
disposition is made in compliance with the terms of this Agreement (and the
Administrative Agent may rely conclusively on any such certificate, without
further inquiry), (iii) constituting property leased to the Borrower or any
Subsidiary under a lease which has expired or been terminated in a transaction
permitted under this Agreement, or (iv) as required to effect any sale or other
disposition of such Collateral in connection with any exercise of remedies of
the Administrative Agent and the Lenders pursuant to Article VII, and (2) take
any actions deemed appropriate by it in connection with grant by the Borrower
or any Subsidiary of Liens of the type described in clauses (c), (d), (e) and
(j) of Section 6.02 (including, without limitation, by executing appropriate
lien releases or lien subordination agreements in favor of the holder or
holders of such Liens, in either case solely with respect to the item or items
of equipment or other assets subject to such Liens).  Any such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of the Loan Parties in respect
of) all interests retained by the Loan Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral.


(e)  If, in connection with any proposed amendment,
waiver or consent  requiring the consent
of “each Lender” or “each Lender affected thereby,” the consent of the Required
Lenders is obtained, but the consent of other necessary Lenders is not obtained
(any such Lender whose consent is necessary but not obtained being referred to
herein as a “Non-Consenting Lender”), then the Borrower may elect to
replace a Non-Consenting Lender as a Lender party to this Agreement, provided
that, concurrently with such replacement, (i) another bank or other entity
which is reasonably satisfactory to the Borrower, the Administrative Agent
shall agree, as of such date, to purchase for cash the Loans and other
Obligations due to the Non-Consenting Lender pursuant to an Assignment and
Assumption and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Non-


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Consenting Lender to be terminated as of such date
and to comply with the requirements of clause (b) of Section 9.04, and (ii) the
Borrower shall pay to such Non-Consenting Lender in same day funds on the day
of such replacement (1) all interest, fees and other amounts then accrued but
unpaid to such Non-Consenting Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due to such
Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any,
equal to the payment which would have been due to such Lender on the day of
such replacement under Section 2.16 had the Loans of such Non-Consenting Lender
been prepaid on such date rather than sold to the replacement Lender.


SECTION 9.03.  Expenses; Indemnity;
Damage Waiver.  (a)  The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication and distribution
(including, without limitation, via the internet or through a service such as Intralinks)
of the credit facilities provided for herein, the preparation and
administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank 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
Issuing Bank or any Lender, including the fees, charges and disbursements of
any one primary counsel, and one additional local counsel in each applicable
jurisdiction, for the Administrative Agent and one additional counsel for all
the Lenders other than the Administrative Agent and additional counsel in light
of actual or potential conflicts of interest or the availability of different
claims of defenses, in connection with the enforcement or protection of its
rights in connection with this Agreement and any other Loan Document, including
its rights under this Section, or 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)  The Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any agreement or instrument contemplated thereby, the performance
by the parties hereto of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction to have resulted from (A) the willful
misconduct, bad faith, fraud or gross negligence of such Indemnitee, its
controlled affiliates or any of their respective officers, directors, employees,
agents and controlling persons (each officer, director, employee, agent or
controlling person of any such Indemnitee or any of such entity’s controlled
affiliates, a “related party” of such entity), (B) any material breach
of the express obligations of such Indemnitee or any of its affiliates or
related parties hereunder or (C) any 


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dispute solely among Indemnitees (not arising as a
result of any act or omission by the Borrower or any of its affiliates).


(c)  To the extent that the Borrower fails to pay
any amount required to be paid by it to the Administrative Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or
the Swingline Lender, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount (it being understood that
the Borrower’s failure to pay any such amount shall not relieve the Borrower of
any default in the payment thereof); 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, the Issuing Bank or the Swingline Lender in its capacity
as such.


(d)  To the 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 Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.


(e)  All amounts due under this Section shall be
payable not later than fifteen (15) days after written demand therefor.


(f)  Notwithstanding anything to the contrary
contained herein, nothing in this Section 9.03 shall apply to Taxes.


SECTION 9.04.  Successors and
Assigns.  (a)  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit),  Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


(b)(i)  Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:


(A)  the Borrower, provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee;


(B)  the Administrative Agent; and


(C)  the Issuing Bank.


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(ii)  Assignments shall be subject
to the following additional conditions:


(A)  except in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans of any
Class, the amount of the Commitment or 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) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no
such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;


(B)  each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, provided that this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;


(C)  the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; and


(D)  the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.


For the purposes of this
Section 9.04(b), the term “Approved Fund”
has the following meaning:


“Approved
Fund” means any Person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


(iii)  Subject to
acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section,
from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.03).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


(iv)  The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices 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 Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding 


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notice to the contrary.  The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.


(v)  Upon its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the 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 assignee shall have failed to make
any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or
(e), 2.07(b), 2.18(d) or 9.03(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 Agreement unless it has been recorded in the Register as provided in
this paragraph.


(c)           (i)  Any Lender may, without the consent of the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender,
sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender’s obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such
Participant.  Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.


(ii)           A Participant shall not be entitled
to receive any greater payment under Section 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) or (f), as applicable, as though it were a Lender.


(d)           Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.


SECTION 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in 


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connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated.  The provisions of Sections
2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any other Loan Document or any provision hereof or thereof.


SECTION 9.06.  Counterparts;
Integration; Effectiveness. 
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


SECTION 9.07.  Severability.  Any provision of any Loan Document held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions thereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final and in whatever currency denominated) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower or any Subsidiary Guarantor against any
of and all the Secured Obligations held by such Lender, irrespective of whether
or not such Lender shall have made any demand under the Loan Documents and
although such obligations may be unmatured. 
The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.


SECTION 9.09.  Governing Law;
Jurisdiction; Consent to Service of Process.  (a)  This Agreement shall be construed in
accordance with and governed by the law of the State of New York.


(b)  The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any 


69





















 


appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
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 or, to
the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Loan Party or its properties in the courts of any
jurisdiction.


(c)  The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.


(d)  Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01.  Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.


SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


SECTION 9.11.  Headings.
 Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.


SECTION 9.12.  Confidentiality.  Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii)  any actual
or prospective counterparty (or its 


70





















 


advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower. 
For the purposes of this Section, “Information” means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the
Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential.  Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


SECTION 9.13.  USA PATRIOT Act.  Each Lender that is subject to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”) hereby notifies the Borrower that
pursuant to the requirements of 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 to identify the Borrower in accordance with the Act.


SECTION 9.14.  Appointment for Perfection.  Each Lender hereby appoints each other Lender
as its agent for the purpose of perfecting Liens, for the benefit of the
Administrative Agent and the Holders of Secured Obligations, in assets which,
in accordance with Article 9 of the UCC or any other applicable law can be
perfected only by possession.  Should any
Lender (other than the Administrative Agent) obtain possession of any such
Collateral, such Lender shall notify the Administrative Agent thereof, and,
promptly upon the Administrative Agent’s request therefor shall deliver such
Collateral to the Administrative Agent or otherwise deal with such Collateral
in accordance with the Administrative Agent’s instructions.


[Signature Pages Follow]


71

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


	
   

  	
  PRICELINE.COM INCORPORATED,

  as the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Robert J. Mylod, Jr.

  	
   

  
	
   

  	
  Name:  Robert
  J. Mylod, r.

  
	
   

  	
  Title:    Chief
  Financial Officer

  



 


 


	
   

  	
  JPMORGAN CHASE BANK, NATIONAL 

  ASSOCIATION, individually as a Lender, as the 

  Swingline Lender, as the Issuing Bank and as 

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ David F. Gibbs

  	
   

  
	
   

  	
  Name:  David
  F. Gibbs

  
	
   

  	
  Title:   
  Managing Director

  
					



 


 


	
   

  	
  BANK OF AMERICA, N.A., individually as a 

  Lender and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Christopher Phelan

  	
   

  
	
   

  	
  Name: 
  Christopher Phelan

  
	
   

  	
  Title:    
  Senior Vice President

  
					



 


 


	
   

  	
  RBS CITIZENS, NATIONAL ASSOCIATION, 

  individually as a Lender and as Co-Documentation 

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ David M. Nackley

  	
   

  
	
   

  	
  Name: David M. Nackley

  
	
   

  	
  Title:   
  Senior Vice President

  
					



 


SIGNATURE PAGE TO CREDIT
AGREEMENT


 

















 


	
   

  	
  BANK OF SCOTLAND PLC, individually as a 

  Lender and as Co-Documentation Agent,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Joseph Fratus

  	
   

  
	
   

  	
  Name:  Joseph
  Fratus

  
	
   

  	
  Title:   
  First Vice President

  
					



 


	
   

  	
  M&T BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Scott Bogmar

  	
   

  
	
   

  	
  Name:   Scott
  Bogmar

  
	
   

  	
  Title:    
  Vice President

  
					



 


	
   

  	
  WACHOVIA BANK, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/  Stephanie
  Cornell

  	
   

  
	
   

  	
  Name:   Stephanie
  Cornell

  
	
   

  	
  Title:     SVP

  
					



 


	
   

  	
  COMMERCE BANK, N.A., as  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Thomas L. Savage

  	
   

  
	
   

  	
  Name:   Thomas
  L. Savage

  
	
   

  	
  Title:    
  Vice President

  
					



 


	
   

  	
  WEBSTER BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Albert M. Schenck

  	
   

  
	
   

  	
  Name:  Albert
  M. Schenck

  
	
   

  	
  Title:    Vice
  President

  
					



 


SIGNATURE PAGE TO CREDIT
AGREEMENT


 

















 


 


SCHEDULE 2.01


 


COMMITMENTS


	
  LENDER

  	
   

  	
  COMMITMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JPMORGAN CHASE
  BANK, NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  32,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BANK OF AMERICA,
  N.A.

  	
   

  	
  $

  	
  32,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  RBS CITIZENS,
  NATIONAL ASSOCIATION

  	
   

  	
  $

  	
  27,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BANK OF SCOTLAND
  plc

  	
   

  	
  $

  	
  27,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  M&T BANK

  	
   

  	
  $

  	
  17,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WACHOVIA BANK,
  N.A.

  	
   

  	
  $

  	
  17,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  COMMERCE BANK,
  N.A.

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WEBSTER BANK

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL
  COMMITMENTS

  	
   

  	
  $

  	
  175,000,000