exv10w2






Exhibit 10.2




EXECUTION COPY




 

 








$950,000,000




CREDIT AGREEMENT



Dated as of March 29, 2010



among



WYNDHAM WORLDWIDE CORPORATION,

as Borrower



THE LENDERS REFERRED TO HEREIN,



BANK OF AMERICA, N.A.,

as Administrative Agent,



JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,



THE BANK OF NOVA SCOTIA,

DEUTSCHE BANK SECURITIES INC.,

THE ROYAL BANK OF SCOTLAND PLC and

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as Co-Documentation Agents



 

 








J.P. MORGAN SECURITIES INC. and

BANC OF AMERICA SECURITIES LLC

as Joint Bookrunners



J.P. MORGAN SECURITIES INC.,

BANC OF AMERICA SECURITIES LLC,

THE BANK OF NOVA SCOTIA, DEUTSCHE BANK SECURITIES INC.,

RBS SECURITIES INC. and CREDIT SUISSE SECURITIES (USA) LLC

as Joint Lead Arrangers



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	1.

	 	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 	 	 
	2.

	 	THE LOANS
	 	 	21	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 2.1. Commitments
	 	 	21	 
	 

	 	SECTION 2.2. Loans
	 	 	22	 
	 

	 	SECTION 2.3. Revolving Credit Borrowing Procedure
	 	 	23	 
	 

	 	SECTION 2.4. Use of Proceeds
	 	 	23	 
	 

	 	SECTION 2.5. Swingline Commitment
	 	 	23	 
	 

	 	SECTION 2.6. Procedure for Swingline Borrowing; Refunding of Swingline Loans
	 	 	24	 
	 

	 	SECTION 2.7. Competitive Bid Procedure — Competitive Loans
	 	 	25	 
	 

	 	SECTION 2.8. Refinancings
	 	 	28	 
	 

	 	SECTION 2.9. Fees
	 	 	28	 
	 

	 	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	29	 
	 

	 	SECTION 2.11. Interest on Loans
	 	 	30	 
	 

	 	SECTION 2.12. Interest on Overdue Amounts
	 	 	30	 
	 

	 	SECTION 2.13. Alternate Rate of Interest
	 	 	31	 
	 

	 	SECTION 2.14. Termination, Reduction and Increase of Revolving Commitments
	 	 	31	 
	 

	 	SECTION 2.15. Prepayment of Loans
	 	 	32	 
	 

	 	SECTION 2.16. Eurocurrency Reserve Costs
	 	 	33	 
	 

	 	SECTION 2.17. Reserve Requirements; Change in Circumstances
	 	 	33	 
	 

	 	SECTION 2.18. Change in Legality
	 	 	35	 
	 

	 	SECTION 2.19. Reimbursement of Lenders
	 	 	35	 
	 

	 	SECTION 2.20. Pro Rata Treatment
	 	 	36	 
	 

	 	SECTION 2.21. Right of Setoff
	 	 	37	 
	 

	 	SECTION 2.22. Manner of Payments
	 	 	37	 
	 

	 	SECTION 2.23. Taxes
	 	 	37	 
	 

	 	SECTION 2.24. Certain Pricing Adjustments
	 	 	39	 
	 

	 	SECTION 2.25. Prepayments Required Due to Currency Fluctuation
	 	 	40	 
	 

	 	SECTION 2.26. Letters of Credit
	 	 	40	 
	 

	 	SECTION 2.27. New Local Facilities
	 	 	47	 
	 

	 	SECTION 2.28. Incremental Credit Extensions
	 	 	48	 
	 

	 	SECTION 2.29. Loan Modification Offers
	 	 	49	 
	 

	 	SECTION 2.30. Cash Collateral
	 	 	51	 
	 

	 	SECTION 2.31. Defaulting Lenders
	 	 	52	 
	 
	 	 	 	 	 	 
	3.

	 	REPRESENTATIONS AND WARRANTIES OF BORROWER
	 	 	54	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 3.1. Corporate Existence and Power
	 	 	54	 
	 

	 	SECTION 3.2. Corporate Authority, No Violation and Compliance with Law
	 	 	54	 
	 

	 	SECTION 3.3. Governmental and Other Approval and Consents
	 	 	55	 
	 

	 	SECTION 3.4. Financial Statements of Borrower
	 	 	55	 
	 

	 	SECTION 3.5. No Change
	 	 	55	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	 

	 	SECTION 3.6. Copyrights, Patents and Other Rights
	 	 	55	 
	 

	 	SECTION 3.7. Title to Properties
	 	 	55	 
	 

	 	SECTION 3.8. Litigation
	 	 	55	 
	 

	 	SECTION 3.9. Federal Reserve Regulations
	 	 	56	 
	 

	 	SECTION 3.10. Investment Company Act
	 	 	56	 
	 

	 	SECTION 3.11. Enforceability
	 	 	56	 
	 

	 	SECTION 3.12. Taxes
	 	 	56	 
	 

	 	SECTION 3.13. Compliance with ERISA
	 	 	56	 
	 

	 	SECTION 3.14. Disclosure
	 	 	57	 
	 

	 	SECTION 3.15. Environmental Liabilities
	 	 	57	 
	 

	 	SECTION 3.16. Material Subsidiaries
	 	 	57	 
	 

	 	SECTION 3.17. Anti-Terrorism Laws
	 	 	57	 
	 
	 	 	 	 	 	 
	4.

	 	CONDITIONS OF LENDING
	 	 	58	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 4.1. Conditions Precedent to Closing
	 	 	58	 
	 

	 	SECTION 4.2. Conditions Precedent to Each Extension of Credit
	 	 	59	 
	 
	 	 	 	 	 	 
	5.

	 	AFFIRMATIVE COVENANTS
	 	 	60	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 5.1. Financial Statements, Reports, etc.
	 	 	60	 
	 

	 	SECTION 5.2. Corporate Existence; Compliance with Statutes
	 	 	62	 
	 

	 	SECTION 5.3. Insurance
	 	 	62	 
	 

	 	SECTION 5.4. Taxes and Charges
	 	 	62	 
	 

	 	SECTION 5.5. ERISA Compliance and Reports
	 	 	62	 
	 

	 	SECTION 5.6. Maintenance of and Access to Books and Records; Examinations
	 	 	63	 
	 

	 	SECTION 5.7. Maintenance of Properties
	 	 	63	 
	 

	 	SECTION 5.8. Changes in Character of Business
	 	 	63	 
	 
	 	 	 	 	 	 
	6.

	 	NEGATIVE COVENANTS
	 	 	63	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 6.1. Limitation on Indebtedness
	 	 	63	 
	 

	 	SECTION 6.2. Consolidation, Merger, Sale of Assets
	 	 	65	 
	 

	 	SECTION 6.3. Limitations on Liens.
	 	 	65	 
	 

	 	SECTION 6.4. Sale and Leaseback
	 	 	66	 
	 

	 	SECTION 6.5. Consolidated Leverage Ratio
	 	 	67	 
	 

	 	SECTION 6.6. Consolidated Interest Coverage Ratio
	 	 	67	 
	 

	 	SECTION 6.7. Accounting Practices
	 	 	67	 
	 
	 	 	 	 	 	 
	7.

	 	EVENTS OF DEFAULT
	 	 	67	 
	 
	 	 	 	 	 	 
	8.

	 	THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER
	 	 	69	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 8.1. Administration by Administrative Agent
	 	 	69	 
	 

	 	SECTION 8.2. Advances and Payments
	 	 	70	 
	 

	 	SECTION 8.3. Sharing of Setoffs and Cash Collateral
	 	 	70	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	 

	 	SECTION 8.4. Notice to the Lenders
	 	 	71	 
	 

	 	SECTION 8.5. Liability of Administrative Agent and each Issuing Lender
	 	 	71	 
	 

	 	SECTION 8.6. Reimbursement and Indemnification
	 	 	72	 
	 

	 	SECTION 8.7. Rights of Administrative Agent
	 	 	72	 
	 

	 	SECTION 8.8. Independent Investigation by Lenders
	 	 	72	 
	 

	 	SECTION 8.9. Notice of Transfer
	 	 	73	 
	 

	 	SECTION 8.10. Successor Administrative Agent
	 	 	73	 
	 

	 	SECTION 8.11. Resignation of an Issuing Lender
	 	 	73	 
	 

	 	SECTION 8.12. Agents Generally
	 	 	73	 
	 
	 	 	 	 	 	 
	9.

	 	GUARANTY OF SUBSIDIARY BORROWER OBLIGATIONS
	 	 	74	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 9.1. Guaranty
	 	 	74	 
	 

	 	SECTION 9.2. No Subrogation
	 	 	74	 
	 

	 	SECTION 9.3. Amendments, etc. with respect to the Obligations; Waiver of Rights
	 	 	75	 
	 

	 	SECTION 9.4. Guaranty Absolute and Unconditional
	 	 	75	 
	 

	 	SECTION 9.5. Reinstatement
	 	 	76	 
	 
	 	 	 	 	 	 
	10.

	 	MISCELLANEOUS
	 	 	76	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 10.1. Notices
	 	 	76	 
	 

	 	SECTION 10.2. Survival of Agreement, Representations and Warranties, etc.
	 	 	78	 
	 

	 	SECTION 10.3. Successors and Assigns; Syndications; Loan Sales; Participations
	 	 	78	 
	 

	 	SECTION 10.4. Expenses
	 	 	81	 
	 

	 	SECTION 10.5. Indemnity
	 	 	82	 
	 

	 	SECTION 10.6. CHOICE OF LAW
	 	 	82	 
	 

	 	SECTION 10.7. No Waiver
	 	 	82	 
	 

	 	SECTION 10.8. Extension of Maturity
	 	 	82	 
	 

	 	SECTION 10.9. Amendments, etc.
	 	 	83	 
	 

	 	SECTION 10.10. Severability
	 	 	84	 
	 

	 	SECTION 10.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL
	 	 	84	 
	 

	 	SECTION 10.12. Headings
	 	 	85	 
	 

	 	SECTION 10.13. Execution in Counterparts
	 	 	86	 
	 

	 	SECTION 10.14. Entire Agreement
	 	 	86	 
	 

	 	SECTION 10.15. Confidentiality
	 	 	86	 
	 

	 	SECTION 10.16. USA PATRIOT Act
	 	 	87	 
	 

	 	SECTION 10.17. Replacement of Lenders
	 	 	87	 
	 

	 	SECTION 10.18. No Advisory or Fiduciary Responsibility
	 	 	87	 






iii 









 






SCHEDULES




	 	 	 
	2.1

	 	Commitments
	3.16

	 	Material Subsidiaries






EXHIBITS




	 	 	 
	A

	 	Form of Opinion of Kirkland & Ellis LLP
	B

	 	Form of Assignment and Acceptance
	C

	 	Form of Compliance Certificate
	D-1

	 	Form of Competitive Bid Request
	D-2

	 	Form of Competitive Bid Invitation
	D-3

	 	Form of Competitive Bid
	D-4

	 	Form of Competitive Bid Accept/Reject Letter
	E

	 	Form of Revolving Credit Borrowing Request
	F

	 	Form of Joinder Agreement
	G-1

	 	Form of New Revolving Lender Supplement
	G-2

	 	Form of New Incremental Lender Supplement
	H

	 	Form of Commitment Increase Supplement







iv 












 





          CREDIT AGREEMENT, dated as of March 29, 2010, among WYNDHAM WORLDWIDE CORPORATION, a
Delaware corporation (the “Borrower”), the lenders party to this Agreement from time to
time (the “Lenders”), JPMORGAN CHASE BANK, N.A., as syndication agent (the “Syndication
Agent”), THE BANK OF NOVA SCOTIA, DEUTSCHE BANK SECURITIES INC., THE ROYAL BANK OF SCOTLAND
PLC, and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as co-documentation agents (the
“Co-Documentation Agents”), and BANK OF AMERICA, N.A., as administrative agent (the
“Administrative Agent”; together with the Syndication Agent, and the Co-Documentation
Agents, the “Agents”) for the Lenders.




          The parties hereto hereby agree as follows:





	1.	 	DEFINITIONS





          For the purposes hereof unless the context otherwise requires, the following terms shall have
the meanings indicated, all accounting terms not otherwise defined herein shall have the respective
meanings accorded to them under GAAP and all terms defined in the New York Uniform Commercial Code
and not otherwise defined herein shall have the respective meanings accorded to them therein:





     “Act” shall have the meaning assigned to such term in Section 10.16.




     “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.




     “ABR Loan” shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Section 2.




     “Administrative Agent” is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 8.10.




     “Affiliate” shall mean as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, a Person shall be deemed to be “controlled by”
another if such latter Person possesses, directly or indirectly, power either to (i) vote
10% or more of the securities having ordinary voting power for the election of directors of
such controlled Person or (ii) direct or cause the direction of the management and policies
of such controlled Person whether by contract or otherwise.




     “Agents” is defined in the preamble.




     “Aggregate Exposure” shall mean, with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s
Commitments at such time and (b) thereafter, the amount of such Lender’s Revolving
Commitment then in effect or, if the Revolving Commitments have been terminated, the amount
of such Lender’s Revolving Extensions of Credit then outstanding.




     “Aggregate Exposure Percentage” shall mean, with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time
to the Aggregate Exposure of all Lenders at such time.




     “Agreement” means, on any date, this Credit Agreement as originally in effect
on the Closing Date and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified from time to time and in effect on such date.














 



2








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




     “Applicable Law” shall mean, with respect to any Person, all provisions of
statutes, rules, regulations and orders of governmental bodies or regulatory agencies
applicable to such Person, and all binding orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party or is subject.




     “Assignment and Acceptance” shall mean an agreement in the form of Exhibit B
hereto, executed by the assignor, assignee and the other parties as contemplated thereby.




     “Australian Dollars” or “A$” shall mean lawful money of Australia.



          “Auto-Reinstatement Letter of Credit” shall have the meaning assigned to such term in
Section 2.26(j).





     “Basis Point” shall mean 1/100th of 1%.




     “Bank of America” shall mean Bank of America, N.A.




     “Board” shall mean the Board of Governors of the Federal Reserve System.




     “Borrower” is defined in the preamble.




     “Borrowing” shall mean a group of Loans of a single Interest Rate Type made by
the Lenders (or in the case of a Competitive Borrowing, by the Lender or Lenders whose
Competitive Bids have been accepted pursuant to Section 2.7) on a single date and as to
which a single Interest Period is in effect.




     “Business Day” shall mean any day other than a Saturday, Sunday or other day on
which banks in the State of New York are permitted to close; provided,
however, that when used in connection with (x) a LIBOR Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits or
deposits in any Optional Currency, as applicable, on the London Interbank market and (y) a
Local Competitive Loan, the term “Business Day” shall also exclude any day on which banks
are not open for general business in the principal financial center of the relevant
jurisdiction.




     “Calculation Time” shall have the meaning assigned to such term in Section
2.25(a).




     “Canadian Dollars” or “C$” shall mean lawful money of Canada.




     “Capital Lease” shall mean as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP,
is or should be accounted for as a capital lease on the balance sheet of that Person.














 



3








     “Cash Collateral Account” shall mean a collateral account established with the
Administrative Agent, in the name of the Administrative Agent and under its sole dominion
and control, into which the Borrower or any Subsidiary Borrower shall from time to time
deposit Dollars, or Cash equivalents, in the case of any such deposit made pursuant to
Section 2.26(g), pursuant to the express provisions of this Agreement requiring such
deposit.




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




     “Cash Equivalents” shall mean any of the following, to the extent acquired for
investment and not with a view to achieving trading profits: (i) obligations fully backed by
the full faith and credit of the United States of America maturing not in excess of twelve
months from the date of acquisition, (ii) commercial paper maturing not in excess of twelve
months from the date of acquisition and rated at least “P-1” by Moody’s or “A-1” by S&P on
the date of such acquisition, (iii) the following obligations of any Lender or any domestic
commercial bank having capital and surplus in excess of $500,000,000, which has, or the
holding company of which has, a commercial paper rating meeting the requirements specified
in clause (ii) above: (a) time deposits, certificates of deposit and acceptances maturing
not in excess of twelve months from the date of acquisition, or (b) repurchase obligations
with a term of not more than thirty days for underlying securities of the type referred to
in clause (i) above, (iv) money market funds that invest exclusively in interest bearing,
short-term money market instruments and adhere to the minimum credit standards established
by Rule 2a-7 of the Investment Company Act of 1940 (17 C.F.R. §270.2A-7 (April 1, 2004), and
(v) municipal securities: (a) for which the pricing period in effect is not more than twelve
months long and (b) rated at least “P-1” by Moody’s or “A-1” by S&P. Notwithstanding the
foregoing, auction rate securities shall not constitute Cash Equivalents.




     “Cendant” shall mean Cendant Corporation, a Delaware corporation.




     “Change in Control” shall mean (i) the acquisition 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 Closing Date), directly or
indirectly, beneficially or of record, of ownership or control of in excess of 35% of the
voting common stock of the Borrower on a fully diluted basis at any time or (ii) if at any
time, individuals who on the Closing Date constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Borrower, as the case may be, was
approved by a vote of the majority of the directors then still in office who were either
directors on the Closing Date or whose election or a nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of Directors of the
Borrower then in office.




     “Closing Date” shall mean the date on which the conditions precedent set forth
in Section 4.1 have been satisfied or waived.














 



4








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




     “Co-Documentation Agents” is defined in the preamble.




     “Commitment Increase Notice” shall have the meaning assigned to such term in
Section 2.14(d).




     “Competitive Bid” shall mean an offer by a Revolving Lender to make a
Competitive Loan pursuant to Section 2.7, in the form of Exhibit D-3.




     “Competitive Bid Accept/Reject Letter” shall mean a notification made by the
Borrower or any Subsidiary Borrower pursuant to Section 2.7(d) in the form of Exhibit D-4.




     “Competitive Bid Rate” shall mean as to any Competitive Bid for a Competitive
Loan made by a Revolving Lender pursuant to Section 2.7(b), (a) in the case of a LIBOR Loan,
the Margin and (b) in the case of a Fixed Rate Competitive Loan, the fixed rate of interest
offered by the Revolving Lender making such Competitive Bid.




     “Competitive Bid Request” shall mean a request made pursuant to Section 2.7 in
the form of Exhibit D-1.




     “Competitive Borrowing” shall mean a Borrowing consisting of a Competitive Loan
or concurrent Competitive Loans from the Revolving Lender or Revolving Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower or any Subsidiary
Borrower under the bidding procedure described in Section 2.7.




     “Competitive Loan” shall mean a Loan from a Revolving Lender to the Borrower or
any Subsidiary Borrower pursuant to the bidding procedure described in Section 2.7. Each
Competitive Loan shall be a LIBOR Competitive Loan or a Fixed Rate Competitive Loan.




     “Confidential Information” shall mean information concerning the Borrower, its
Subsidiaries or its Affiliates which is non-public, confidential or proprietary in nature,
or any information that is marked or designated confidential by or on behalf of the
Borrower, which is furnished to any Lender by the Borrower or any of its Affiliates directly
or through the Administrative Agent in connection with this Agreement or the transactions
contemplated hereby (at any time on, before or after the date hereof), together with all
analyses, compilations or other materials prepared by such Lender or its respective
directors, officers, employees, agents, auditors, attorneys, consultants or advisors which
contain or otherwise reflect such information.




     “Consolidated Assets” shall mean, at any date of determination, the total
assets of the Borrower and its Consolidated Subsidiaries determined in accordance with GAAP.




     “Consolidated EBITDA” shall mean, without duplication, for any period for which
such amount is being determined, the sum of the amounts for such period of (i) Consolidated
Net Income, (ii) provision for taxes based on income, (iii) depreciation expense, (iv)
Consolidated Interest Expense, (v) amortization expense, (vi) payments in an aggregate
amount not to exceed $35,000,000 during any Rolling Period that arise out of or in
connection with the Spin-Off including those made in respect of legacy Cendant expense
reimbursement obligations, (vii) cash restructuring charges in an aggregate amount not to
exceed $35,000,000 after the Closing Date taken in connection with publicly announced
business and operation restructurings provided that any such restructuring charges taken in
any fiscal quarter shall, for purposes of calculating









 



5



Consolidated EBITDA, be deemed to be taken 25% in such fiscal quarter and 25% in each
of the following three fiscal quarters and (viii) other non-cash items reducing Consolidated
Net Income, minus (plus) (ix) any non-recurring gains (losses) on business exit
activities outside the ordinary course of business if such gains (losses) are included in
Consolidated Net Income) minus (x) any cash expenditures during such period in
excess of $25,000,000 to the extent such cash expenditures (A) did not reduce Consolidated
Net Income for such period and (B) were applied against reserves that constituted non-cash
items which reduced Consolidated Net Income during prior periods (including reserves
established upon the consummation of the Spin-Off), all as determined on a consolidated
basis for the Borrower and its Consolidated Subsidiaries in accordance with GAAP;
provided that to the extent the aggregate amount of cash expenditures referred to in
clause (x) above exceeds $50,000,000 in any period of measurement, such amounts may be
spread ratably over the period being measured and the periods of measurement for the
subsequent three fiscal years, provided, however, that in any annual
measurement period the maximum amount being spread may not exceed $100,000,000 and any
excess over that amount must be reflected fully in the relevant measurement period.
Notwithstanding the foregoing, in calculating Consolidated EBITDA pro forma effect shall be
given to each (1) acquisition of a Consolidated Subsidiary or any other entity acquired by
the Borrower or any of its Consolidated Subsidiaries in a merger, where the purchase price
or merger consideration exceeds $25,000,000 during such period and (2) disposition property
by the Borrower and its Consolidated Subsidiaries yielding gross profits in excess of
$25,000,000 during such period as if such acquisition or disposition had been made on the
first day of such period.




     “Consolidated Financial Statements” shall have the meaning assigned to such
term in Section 3.4(b).




     “Consolidated Interest Coverage Ratio” shall mean, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such
period.




     “Consolidated Interest Expense” shall mean for any period for which such amount
is being determined, total interest expense paid or payable in cash (including that properly
attributable to Capital Leases in accordance with GAAP but excluding in any event (x) all
capitalized interest and amortization of debt discount and debt issuance costs and (y) debt
extinguishment costs) of the Borrower and its Consolidated Subsidiaries on a consolidated
basis including, without limitation, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing and net cash costs
(or minus net profits) under Interest Rate Protection Agreements minus, without
duplication, any interest income of the Borrower and its Consolidated Subsidiaries on a
consolidated basis during such period. Notwithstanding the foregoing, interest expense in
respect of any Securitization Indebtedness or any Non-Recourse Indebtedness shall not be
included in Consolidated Interest Expense.




     “Consolidated Leverage Ratio” shall mean, as of the last day of any period, the
ratio of (a) Consolidated Total Indebtedness on such day to (b) Consolidated EBITDA for such
period.




     “Consolidated Net Income” shall mean, for any period for which such amount is
being determined, the net income (or loss) of the Borrower and its Consolidated Subsidiaries
during such period determined on a consolidated basis for such period taken as a single
accounting period in accordance with GAAP, provided that there shall be excluded (i)
income (loss) of any Person (other than a Consolidated Subsidiary of the Borrower) in which
the Borrower or any of its Consolidated Subsidiaries has any equity investment or comparable
interest, except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or its









 



6



Consolidated Subsidiaries by such Person during such period, (ii) the income of any
Consolidated Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by that Consolidated Subsidiary of the income is not at
the time permitted by operation of the terms of its charter, or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that
Consolidated Subsidiary, (iii) any extraordinary after-tax gains and (iv) any extraordinary
or unusual pretax losses. (including indemnity obligations incurred or liabilities assumed
in connection with the Spin-Off).




     “Consolidated Net Worth” shall mean, as of any date of determination, all items
which in conformity with GAAP would be included under shareholders’ equity on a consolidated
balance sheet of the Borrower and its Subsidiaries at such date.




     “Consolidated Subsidiaries” shall mean all Subsidiaries of the Borrower that
are required to be consolidated with the Borrower for financial reporting purposes in
accordance with GAAP.




     “Consolidated Total Indebtedness” shall mean (i) the total amount of
Indebtedness of the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis using GAAP principles of consolidation, which is, at the dates as of which
Consolidated Total Indebtedness is to be determined, includable as liabilities on a
consolidated balance sheet of the Borrower and its Subsidiaries, plus (ii) without
duplication of any items included in Indebtedness pursuant to the foregoing clause (i),
Indebtedness of others which the Borrower or any of its Consolidated Subsidiaries has
directly or indirectly assumed or guaranteed (but only to the extent so assumed or
guaranteed) or otherwise provided credit support therefor, including without limitation,
Guaranty Obligations; provided that, for purposes of this definition, Indebtedness
shall not include (1) Guaranty Obligations and contingent liabilities incurred or assumed in
connection with the Spin-Off (including those determined in accordance with FIN 45 and
SFAS), (2) Securitization Indebtedness, (3) the aggregate undrawn amount of outstanding
Letters of Credit, (4) Non-Recourse Indebtedness, or (5) obligations incurred under any
derivatives transaction entered into in the ordinary course of business pursuant to hedging
programs. In addition, for purposes of this definition, the amount of Indebtedness at any
time shall be reduced (but not to less than zero) by the amount of Excess Cash.




     “Currency” shall mean Dollars or any Optional Currency.




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




     “Default” shall mean any event, act or condition, which with notice or lapse of
time, or both, would constitute an Event of Default.




     “Defaulting Lender” means, subject to Section 2.31, any Lender that, as
reasonably determined by the Administrative Agent, (a) has failed to perform any of its
funding obligations hereunder including in respect of its Loans or participations in respect
of Letters of Credit or Swingline Loans within three Business Days of the date required to
be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that it
does not intend to comply with its funding obligations hereunder or has made a public
statement to that effect with respect to its funding obligations hereunder or (c) has, or
has had a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had a receiver,









 



7



conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or a custodian appointed
for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval
of or acquiescence in any such proceeding or appointment unless, in each case, such Lender
has confirmed in writing its intention to fulfill its funding obligations hereunder;
provided that a Lender shall not be a Defaulting Lender solely by virtue
of the ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.




     “Disclosed Matters” shall mean public filings with the Securities and Exchange
Commission made by the Borrower or any of its Subsidiaries on Form S-4, Form 8-K, Form 10-Q,
Form 10-K or Form 10 (as filed at least three days prior to the Closing Date, as applicable)
or any successor form.




     “Dollar Equivalent” shall mean, on any date of determination, (a) with respect
to any amount denominated in Dollars, such amount, and (b) with respect to an amount
denominated in any Optional Currency, the equivalent in Dollars of such amount determined by
the Administrative Agent in accordance with normal banking industry practice using the
Exchange Rate on the date of determination of such equivalent. In making any determination
of the Dollar Equivalent (for purposes of calculating the amount of Loans to be borrowed
from the respective Lenders on any date or for any other purpose), the Administrative Agent
shall use the relevant Exchange Rate in effect on the date on which the Borrower or any
Subsidiary Borrower delivers a Borrowing Request for Loans or on such other date upon which
a Dollar Equivalent is required to be determined pursuant to the provisions of this
Agreement. As appropriate, amounts specified herein as amounts in Dollars shall be or
include any relevant Dollar Equivalent amount.




     “Dollars” and “$” shall mean lawful money of the United States of
America.




     “Domestic LIBOR Competitive Loan” shall mean any LIBOR Competitive Loan made to
the Borrower or any Subsidiary Borrower in the United States.




     “Domestic Fixed Rate Competitive Loan” shall mean any Fixed Rate Competitive
Loan made to the Borrower or any Subsidiary Borrower in the United States.




     “Domestic Subsidiary Borrower” shall mean any Subsidiary Borrower organized
under the laws of the United States or any political subdivision thereof.




     “Eligible Assignee” shall mean (i) any Lender, (ii) an Affiliate of any Lender
and (iii) any other Person approved by the Administrative Agent, the relevant Issuing
Lender, the Swingline Lender and the Borrower (such approvals not to be unreasonably
withheld or delayed) provided the consent of the Borrower shall not be required so
long as an Event of Default has occurred and is continuing; provided that “Eligible
Assignee” shall not include (x) any natural person or (y) with respect to any revolving
facility under this Agreement (including any Revolving Commitment) the Borrower or any of
its Subsidiaries or controlled Affiliates.




     “EMU Legislation” shall mean the legislative measures of the European Council
(including without limitation the European Council regulations) for the introduction of,
changeover to or operation of the Euro in one or more member states.




     “Environmental Law” shall mean all laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, judgments, injunctions, notices or requirements issued,
promulgated or entered into by any Governmental Authority, relating in any way to the
environment, preservation or









 



8



reclamation of natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters, including without limitation, the Clean
Water Act also known as the Federal Water Pollution Control Act (“FWPCA”) 33 U.S.C.
§ 1251 et seq., the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401
et seq., the Federal Insecticide, Fungicide and Rodenticide Act
(“FIFRA”), 7 U.S.C. §§ 136 et seq., the Surface Mining Control and
Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42
U.S.C. § 9601 et seq., the Superfund Amendment and Reauthorization Act of
1986 (“SARA”), Public Law 99-499, 100 Stat. 1613, the Emergency Planning and
Community Right to Know Act (“ECPCRKA”), 42 U.S.C. § 11001 et seq.,
the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et
seq., the Occupational Safety and Health Act as amended (“OSHA”), 29 U.S.C.
§ 655 and § 657, together, in each case, with any amendment thereto, and the regulations
adopted and binding publications promulgated thereunder and all substitutions thereof.




     “Environmental Liabilities” shall mean any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the 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.




     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as such
Act may be amended from time to time, and the regulations promulgated thereunder.




     “ERISA Affiliate” shall mean 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” shall mean (a) any “reportable event,” as defined in Section 4043
of ERISA or the regulations issued thereunder as in effect on the date hereof (other than an
event for which the 30-day notice period is waived pursuant to regulations as in effect on
the date hereof) with respect to a Plan; (b) the failure by any Plan to satisfy the minimum
funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of
ERISA) applicable to such Plan, whether or not waived; (c) a determination that any Plan is,
or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or
Section 303 of ERISA); (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 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 of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization, or in
“endangered” or “critical” status (within the meaning of Section 432 of the Code or Section
305 of ERISA).









 



9



     “Euro” and “€” shall mean the single currency of Participating Member
States introduced in accordance with the provisions of Article 123 of the Treaty and, in
respect of all payments to be made under this Agreement in Euro, means immediately
available, freely transferable funds in such currency.




     “Event of Default” shall have the meaning given such term in Section 7 hereof.




     “Excess Cash” shall mean all cash and Cash Equivalents of the Borrower and its
Consolidated Subsidiaries at such time determined on a consolidated basis in accordance with
GAAP in excess of $10,000,000.




     “Exchange Rate” shall mean, on any day, with respect to any Optional Currency,
the rate at which such currency may be exchanged into Dollars, as set forth at approximately
11:00 a.m. Eastern time, on such day on the Bloomberg Benchmark Currency Rates page for such
Optional Currency, and provided that the Issuing Lender may use such exchange rate quoted on
the date as of which the foreign exchange computation is made in the case of any Letter of
Credit denominated in an Optional Currency. In the event that such rate does not appear on
any Bloomberg Benchmark Currency Rates page, the Exchange Rate shall be determined by
reference to such publicly available service for displaying exchange rates as may be agreed
upon in writing between the Borrower and the Administrative Agent.




     “Excluded Taxes” shall mean, with respect to any Lender, or any other recipient
of payment to be made by or on account of any obligation of the Borrower or any Subsidiary
Borrower hereunder or under any Fundamental Document, (a) income taxes and franchise taxes
based on (or measured by) its net income or net profits (or franchise taxes imposed in lieu
of net income taxes) imposed on such Lender or other recipient as a result of a present or
former connection between such Lender or such recipient and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the Administrative
Agent or such Lender having executed, delivered or performed its obligations or received a
payment hereunder, or enforced, this Agreement), (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction, (c) any
withholding tax that is imposed on amounts payable to such Lender in Dollars, or any other
recipient of any payment to be made by or on account of any obligation denominated in
Dollars of the Borrower or any Domestic Subsidiary Borrower hereunder, at the time such
Lender becomes a party to this Agreement (or designates a new Lending Office), except to the
extent that such Lender (or its assignor, if any) was entitled, immediately prior to the
time of designation of a new Lending Office (or assignment), to receive additional amounts
from the Borrower or any Domestic Subsidiary Borrower with respect to such withholding tax
pursuant to Section 2.23(a), (d) Taxes attributable to such Lender’s failure to comply with
Section 2.23(e), and (e) any Taxes imposed as a result of such Lender’s gross negligence or
willful misconduct.




     “Existing Credit Agreement” shall mean the Credit Agreement dated as of July 7,
2006 among Wyndham Worldwide Corporation, as borrower, JPMorgan Chase Bank, N.A., as
Administrative Agent and a lender, Citicorp USA, Inc., as syndication agent and a lender,
and the several other lenders referred to therein, as in effect immediately prior to the
Closing Date.




     “Existing Issuing Lender” shall mean any issuer of an Existing Letter of
Credit.




     “Existing Letters of Credit” shall mean the letters of credit described on
Schedule 2.26 hereto.









 



10



     “Facility Fee” shall have the meaning given such term in Section 2.9 hereof.




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




     “Fixed Rate Borrowing” shall mean a Borrowing comprised of Fixed Rate
Competitive Loans.




     “Fixed Rate Competitive Loan” shall mean a Competitive Loan (either a Domestic
Fixed Rate Competitive Loan or a Local Fixed Rate Competitive Loan) bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more than four
decimal places) specified by the Lender making such Loan in its Competitive Bid.




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




     “Fundamental Documents” shall mean this Agreement, any Notes and any Compliance
Certificate which is required to be executed by the Borrower or any Subsidiary Borrower
pursuant to Section 5.1(c) and delivered to the Administrative Agent in connection with this
Agreement.




     “Funding Office” shall mean the office of the Administrative Agent specified in
Section 10.1 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and the
Lenders.




     “GAAP” shall mean generally accepted accounting principles in the United States
as in effect from time to time. In the event that any “Accounting Change” (as defined
below) shall occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the Borrower and the
Administrative Agent agree upon written request of the Borrower or Administrative Agent, as
applicable, to enter into negotiations in order to amend such provisions of this Agreement
so as to reflect equitably such Accounting Changes with the desired result that the criteria
for evaluating the Borrower’s financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made. If an agreement to amend cannot be
made after 45 days following delivery of such written request, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or construed as if
such Accounting Changes had not occurred. “Accounting Changes” refers to changes in
accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of









 



11



the American Institute of Certified Public Accountants or, if applicable, the
Securities and Exchange Commission.




     “Governmental Authority” shall mean any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, or any court,
in each case whether of the United States or foreign.




     “Granting Lender” shall have the meaning assigned to such term in Section
10.3(k).




     “Guaranty” shall mean the guaranty of the Subsidiary Borrower Obligations
provided by the Borrower pursuant to Section 9.




     “Guaranty Obligation” shall mean any obligation, contingent or otherwise, of
the Person guaranteeing or having the economic effect of guaranteeing any Indebtedness 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 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 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 (d) as
an account party in respect of any letter of credit or letter of guaranty issued to support
such Indebtedness; provided, however, that in calculating the amount of any
Guaranty Obligation for any purpose under this Agreement, the amount of such Guaranty
Obligation shall be limited to the extent necessary so that such amount does not exceed the
value of the assets of such Person (as reflected on a consolidated balance sheet of such
Person prepared in accordance with GAAP) to which any creditor or beneficiary of such
Guaranty Obligation would have recourse. Notwithstanding the foregoing definition, the term
“Guaranty Obligation” shall not include any direct or indirect obligation of a Person as a
general partner of a general partnership or a joint venturer of a joint venture in respect
of Indebtedness of such general partnership or joint venture, to the extent such
Indebtedness is contractually non-recourse to the assets of such Person as a general partner
or joint venturer (other than assets comprising the capital of such general partnership or
joint venture). The term “Guaranty Obligation” shall not include endorsements for
collection or deposit in the ordinary course of business.




     “Hazardous Materials” shall mean 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.




     “Incremental Amendment” shall have the meaning assigned to such term in Section
2.28(a).




     “Incremental Facilities” shall have the meaning assigned to such term in
Section 2.28(a). The aggregate amount of the Incremental Facilities shall not exceed
$250,000,000 at any time.




     “Incremental Lender” shall have the meaning assigned to such term in Section
2.28(a).




     “Incremental Revolving Commitment” shall have the meaning assigned to such term
in Section 2.28(a).









 



12



     “Incremental Term Loans” shall have the meaning assigned to such term in
Section 2.28(a).




     “Indebtedness” shall mean (without double counting), at any time and with
respect to any Person, (i) indebtedness of such Person for borrowed money (whether by loan
or the issuance and sale of debt securities) or for the deferred purchase price of property
or services purchased (other than amounts constituting account payables arising in the
ordinary course and payable within 180 days); (ii) indebtedness of others of the type
described in clause (i), (iii), (iv) or (v) of this definition of Indebtedness, which such
Person has directly or indirectly assumed or guaranteed (but only to the extent so assumed
or guaranteed) or otherwise provided credit support therefor, including without limitation,
Guaranty Obligations; (iii) indebtedness of others secured by a Lien on assets of such
Person, whether or not such Person shall have assumed such indebtedness (but only to the
extent of the fair market value of such assets); (iv) obligations of such Person in respect
of letters of credit, acceptance facilities, or drafts or similar instruments issued or
accepted by banks and other financial institutions for the account of such Person (other
than account payables arising in the ordinary course and payable within 180 days); or (v)
obligations of such Person under Capital Leases.




     “Indemnified Party” shall have the meaning assigned to such term in Section
10.5.




     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes and Other Taxes.




     “Insolvent” shall mean, with respect to any Multiemployer Plan, the condition
that such plan is insolvent within the meaning of Section 4245 of ERISA.




     “Interest Payment Date” shall mean, with respect to any Borrowing, the last day
of the Interest Period applicable thereto and, in the case of a LIBOR Borrowing with an
Interest Period of more than three months’ duration or a Fixed Rate Borrowing with an
Interest Period of more than 90 days’ duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months duration or 90 days’ duration,
as the case may be, been applicable to such Borrowing, and, in addition, the date of any
refinancing or conversion of a Borrowing with, or to, a Borrowing of a different Interest
Rate Type; provided, that as to any Swingline Loan, “Interest Payment Date” shall
mean the day that such Loan is required to be repaid.




     “Interest Period” shall mean (a) as to any LIBOR Borrowing, the period
commencing on the date of such Borrowing, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day or if the date of the LIBOR Borrowing is
the last day of any month, on the last day) in the calendar month that is 1, 2, 3, 6 or,
subject to each Lender’s approval, 9 or 12 months thereafter, as the Borrower or any
applicable Subsidiary Borrower may elect, (b) as to any ABR Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the next succeeding March
31, June 30, September 30 or December 31, (ii) the Maturity Date and (iii) the date such
Borrowing is refinanced with a Borrowing of a different Interest Rate Type in accordance
with Section 2.8 or is prepaid in accordance with Section 2.15 and (c) as to any Fixed Rate
Borrowing, the period commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offer to make the Fixed Rate Competitive
Loans comprising such Borrowing were extended, which shall not be earlier than one day after
the date of such Borrowing or later than 360 days after the date of such Borrowing;
provided, however, 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 LIBOR Loans only, such next succeeding Business Day would fall in
the next









 



13



calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) no Interest Period may be selected which would extend beyond the
Maturity Date. Interest shall accrue from, and including, the first day of an Interest
Period to, but excluding, the last day of such Interest Period.




     “Interest Rate Protection Agreement” shall mean any interest rate swap
agreement, interest rate cap agreement or other similar financial agreement or arrangement.




     “Interest Rate Type” when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, “Rate” shall include LIBOR, the Alternate
Base Rate and the Fixed Rate.




     “Issuance” shall mean with respect to any Letter of Credit, the issuance,
amendment, renewal or extension of such Letter of Credit, provided that the
reinstatement of any Letter of Credit shall not constitute an issuance of such Letter of
Credit.




     “Issuing Lender” shall mean, either JPMorgan Chase Bank or Bank of America, or
in either case, any Affiliate thereof and such other Lenders or Affiliates thereof as may be
designated in writing by the Borrower which agree in writing to act as such in accordance
with the terms hereof (including any Existing Issuing Lender).




     “Joinder Agreement” shall have the meaning assigned to such term in Section
10.9(b).




     “JPMorgan Chase Bank” shall mean JPMorgan Chase Bank, N.A.




     “Landal” shall mean Landal Greenparks Holding B.V.




     “Landal Facilities” shall mean one or more debt facilities, extensions of
credit, loans, securities issuances, commercial paper facilities or other forms of
Indebtedness providing for revolving credit loans, term loans, receivables financing,
(including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), notes, letters of credit,
debentures, mortgages or any other form of financing entered into by Landal or any of its
Subsidiaries or any successor entity (whether by asset sale, merger or otherwise) to Landal
or any of its Subsidiaries, in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise) or refinanced in whole or in part
from time to time.




     “L/C Exposure” shall mean, at any time, the amount expressed in Dollars of the
aggregate face amount of all drafts which may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding plus (without duplication) the
face amount of all drafts which have been presented under Letters of Credit but have not yet
been paid or have been paid but not reimbursed; provided that L/C Exposure shall not exceed
$350,000,000 at any time.




     “Lender and “Lenders” is defined in the preamble and includes any
assignee of a Lender permitted pursuant to Section 10.3(b).




     “Lending Office” shall mean, with respect to any of the Lenders, the branch or
branches (or affiliate or affiliates) from which any such Lender’s LIBOR Loans, Fixed Rate
Competitive Loans or ABR Loans, as the case may be, are made or maintained and for the
account of which all payments of principal of, and interest on, such Lender’s LIBOR Loans,
Fixed Rate









 



14



Competitive Loans or ABR Loans are made, as notified to the Administrative Agent from
time to time.




     “Letter of Credit” shall have the meaning assigned to such term in Section
2.26.




     “Letter of Credit Application” shall mean an application and agreement for the
issuance or amendment of a letter of credit in the form from time to time in use by the
Issuing Lender.




     “Letter of Credit Fee” shall have the meaning assigned to such term in Section
2.26.




     “LIBOR” shall mean:




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




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




     “LIBOR Borrowing” shall mean a Borrowing comprised of LIBOR Loans.




     “LIBOR Competitive Loan” shall mean a Competitive Loan (either a Domestic LIBOR
Competitive Loan or a Local LIBOR Competitive Loan) bearing interest at a rate determined by
reference to LIBOR in accordance with the provisions of Section 2.




     “LIBOR Loan” shall mean any LIBOR Competitive Loan or LIBOR Revolving Credit
Loan.




     “LIBOR Revolving Credit Loan” shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to LIBOR in accordance with the provisions of
Section 2.




     “LIBOR Spread” shall mean, at any date or any period of determination, the
LIBOR Spread that would be in effect on such date or during such period pursuant to the
applicable chart









 



15



set forth in Section 2.24 based on the rating of the Borrower’s senior non-credit
enhanced unsecured long-term debt.




     “Lien” shall mean, 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” shall mean any loan made by any Lender pursuant to this Agreement.




     “Loan Modification Offer” shall have the meaning assigned to such term in
Section 2.29.




     “Loan Parties” shall mean the Borrower and the Subsidiary Borrowers.




     “Local Competitive Loan” shall mean any Competitive Loan which is a Local LIBOR
Competitive Loan or a Local Fixed Rate Competitive Loan.




     “Local Facility Amendment” shall have the meaning assigned to such term in
Section 2.27.




     “Local LIBOR Competitive Loan” shall mean any LIBOR Competitive Loan
denominated in any Optional Currency made to the Borrower or any Subsidiary Borrower in the
jurisdiction in which such Optional Currency is the national currency.




     “Local Fixed Rate Competitive Loan” shall mean any Fixed Rate Competitive Loan
denominated in any Optional Currency made to the Borrower or any Subsidiary Borrower in the
jurisdiction in which such Optional Currency is the national currency.




     “Margin” shall mean, as to any LIBOR Competitive Loan, the margin (expressed as
a percentage rate per annum in the form of a decimal to four decimal places) to be added to,
or subtracted from, LIBOR in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.




     “Margin Stock” shall be as defined in Regulation U of the Board.




     “Material Adverse Effect” shall mean a material adverse effect on the business,
assets, operations or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, other than any change, effect or circumstance to the extent
resulting from (i) disruptions in, or the inability of companies engaged in businesses
similar to those engaged in by the Borrower and its Subsidiaries to consummate financings
in, the asset backed securities or conduit market or (ii) tax and related liabilities
relating to Cendant’s taxable years 2003 through 2006 arising under the Borrower’s tax
sharing agreement with Cendant; provided that after giving pro forma effect to the
payments of such liabilities the Borrower would be in pro forma compliance with the
covenants contained in Sections 6.5 and 6.6.




     “Material Subsidiary” shall mean any Subsidiary (other than a Securitization
Entity) of the Borrower which, together with its Subsidiaries (other than Securitization
Entities) at the time of determination hold, or, solely with respect to Sections 7(f) and
7(g), any group of Subsidiaries which, if merged into each other at the time of
determination would hold, assets constituting 15%









 



16



or more of Consolidated Assets or accounts for 15% or more of Consolidated EBITDA for
the Rolling Period immediately preceding the date of determination.




     “Maturity Date” shall mean October 1, 2013 as such date may be extended
pursuant to Section 2.29.




     “Moody’s” shall mean Moody’s Investors Service, Inc.




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




     “New Lender” shall have the meaning assigned to such term in Section 2.14(e).




     “New Local Facility” shall have the meaning assigned to such term in Section
2.27. The aggregate Dollar Equivalent amounts of such New Local Facilities shall not exceed
$200,000,000 at any time.




     “New Local Facility Lender” shall have the meaning assigned to such term in
Section 2.27.




     “New Zealand Dollars” or “NZ$” shall mean the lawful money of New
Zealand.




     “Non-Consenting Lender” shall have the meaning assigned to such term in Section
10.17.




     “Non-Recourse Indebtedness” shall mean a transaction or series of transactions
pursuant to which the Borrower or any other Person (i) issues Indebtedness secured by,
payable from or representing beneficial interests in assets of such Person for which neither
the Borrower nor any of its Material Subsidiaries is liable in any way other than pursuant
to Standard Securitization Undertakings (unless such liability of the Borrower or such
Material Subsidiary is otherwise permitted to be incurred hereunder by the Borrower or such
Material Subsidiary) or (ii) transfers or grants a security interest in assets of such
Person to any Person that finances the acquisition of such assets through the issuance of
securities or the incurrence of Indebtedness or issues obligations secured by such assets.




     “Non-Reinstatement Deadline” shall have the meaning assigned to such term in
Section 2.26(j).




     “Notes” shall mean any promissory notes evidencing Loans.




     “Obligations” shall mean the obligation of the Borrower and any Subsidiary
Borrower to make due and punctual payment of principal of, and interest on, the Loans, the
Facility Fee, reimbursement obligations in respect of Letters of Credit and all other
monetary obligations of the Borrower or any Subsidiary Borrower to the Administrative Agent,
any Issuing Lender or any Lender under this Agreement or the Fundamental Documents
(including under the New Local Facilities).




     “Offered Increase Amount” shall have the meaning assigned to such term in
Section 2.14(d).




     “Optional Currency” shall mean, at any time, Australian Dollars, Canadian
Dollars, Euros, New Zealand Dollars, Pounds and Yen, so long as such currency is freely
traded and









 



17



convertible into Dollars in the London Interbank market and a Dollar Equivalent thereof
can be calculated.




     “Other Taxes” shall mean any and all present or future stamp or documentary
taxes, assessments or charges made by any Governmental Authority by reason of the execution
and delivery of this Agreement or the issuance of any Letters of Credit or any Fundamental
Document.




     “Participant” shall have the meaning assigned to such term in Section 10.3(g).




     “Participant Register” shall have the meaning assigned to such term in Section
10.3(g).




     “Participating Member State” shall mean a member of the European Communities
that adopts or has adopted the Euro as its currency in accordance with EMU Legislation.




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




     “Permitted Amendments” shall have the meaning assigned to such term in Section
2.29(c).




     “Permitted Encumbrances” shall mean Liens permitted under Section 6.3 hereof.




     “Person” shall mean any natural person, corporation, division of a corporation,
partnership, limited liability company, trust, joint venture, company, estate,
unincorporated organization or government or any agency or political subdivision thereof.




     “Plan” shall mean 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 (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




     “Pounds” or “£” or “Pound Sterling” shall mean the lawful money
of the United Kingdom.




     “Prime Rate” shall have the meaning assigned to such term in the definition of
“Alternate Base Rate”.




     “Pro Forma Balance Sheet” shall have the meaning assigned to such term in
Section 3.4(a).




     “Pro Forma Basis” shall mean in connection with any transaction for which a
determination on a Pro Forma Basis is required to be made hereunder, that such determination
shall be made (i) after giving effect to any issuance of Indebtedness, any acquisition, any
disposition or any other transaction (as applicable) and (ii) assuming that the issuance of
Indebtedness, acquisition, disposition or other transaction and, if applicable, the
application of any proceeds therefrom, occurred at the beginning of the most recent Rolling
Period ending at least thirty days prior to the date on which such issuance of Indebtedness,
acquisition, disposition or other transaction occurred.




     “Ratable Assignment” shall have the meaning assigned to such term in Section
10.3(b).









 



18



     “Refunded Swingline Loan” shall have the meaning assigned to such term in
Section 2.6(b).




     “Register” shall have the meaning assigned to such term in Section 10.3(e).




     “Related Parties” shall mean, 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.




     “Reorganization” shall mean, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.




     “Responsible Officer” shall mean the chief executive officer, president, chief
accounting officer, chief financial officer, treasurer or assistant treasurer of the
Borrower.




     “Required Lenders” shall mean at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the Total
Revolving Commitments then in effect or, if the Total Revolving Commitment has been
terminated in its entirety, the Revolving Credit Exposure. The Revolving Commitment of, and
the portion of the Revolving Credit Exposure attributable to, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.




     “Revolving Commitment” shall mean with respect to any Lender, the commitment of
such Lender, if any, to make Revolving Credit Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set
forth (i) under the heading “Revolving Commitment” opposite such Lender’s name on Schedule
2.1 hereto and/or (ii) in any applicable Assignment and Acceptance to which it may be a
party, as the case may be, as such Lender’s Revolving Commitment may be permanently
terminated, reduced or increased from time to time pursuant to Section 2.14 or Section 7.
The Revolving Commitments shall automatically and permanently terminate on the earlier of
(a) the Maturity Date or (b) the date of termination in whole pursuant to Section 2.14 or
Section 7.




     “Revolving Commitment Increase” shall have the meaning assigned to such term in
Section 2.28(a).




     “Revolving Commitment Increase Lender” shall have the meaning assigned to such
term in Section 2.28(a).




     “Revolving Credit Borrowing” shall mean a Borrowing consisting of simultaneous
Revolving Credit Loans from each of the Revolving Lenders.




     “Revolving Credit Borrowing Request” shall mean a request made pursuant to
Section 2.3 in the form of Exhibit E.




     “Revolving Credit Exposure” shall mean, at any time, the sum of (A) the
aggregate outstanding principal amount of all Revolving Credit Loans made by all Lenders
plus (B) the aggregate Dollar Equivalent outstanding principal amount of all
Competitive Loans made by all Lenders plus (C) the then current L/C Exposure
plus (D) the aggregate outstanding principal amount of all Swingline Loans.









 



19



     “Revolving Credit Loans” shall have the meaning given such term in Section
2.1(b). Each Revolving Credit Loan shall be a LIBOR Revolving Credit Loan or an ABR Loan.




     “Revolving Extensions of Credit” shall mean, as to any Revolving Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving
Credit Loans held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of
the Revolving L/C Exposure then outstanding and (c) such Lender’s Revolving Percentage of
the aggregate principal amount of Swingline Loans then outstanding. In addition, any
extension of credit by a Revolving Lender under a New Local Facility shall constitute a
Revolving Extension of Credit by such Lender.




     “Revolving Facility” shall mean the Revolving Commitments and the extensions of
credit thereunder.




     “Revolving L/C Exposure” shall mean, at any time, L/C Exposure attributable to
Letters of Credit.




     “Revolving Lender” shall mean each Lender that has a Revolving Commitment or
that holds Revolving Credit Loans.




     “Revolving Percentage” shall mean, as to any Revolving Lender at any time, the
percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving
Commitment or, at any time after the Revolving Commitments shall have expired or terminated,
the percentage which the aggregate principal amount of such Lender’s Revolving Extensions of
Credit then outstanding constitutes of the aggregate Revolving Extensions of Credit of all
Revolving Lenders.




     “Rolling Period” shall mean with respect to any fiscal quarter, such fiscal
quarter and the three immediately preceding fiscal quarters considered as a single
accounting period.




     “S&P” shall mean Standard & Poor’s.




     “Securitization Entity” shall mean any Subsidiary or other Person engaged
solely in the business of effecting asset securitization transactions and related
activities.




     “Securitization Indebtedness” shall mean (i) Indebtedness incurred by a
Securitization Entity that does not permit or provide for recourse for principal and
interest (other than Standard Securitization Undertakings) to the Borrower or any Subsidiary
of the Borrower (other than a Securitization Entity) or any property or asset of the
Borrower or any Subsidiary of the Borrower (other than the property or assets of, or any
equity interests or other securities issued by, a Securitization Entity) and (ii)
Indebtedness incurred by the Borrower or a Material Subsidiary that does not permit or
provide for recourse for principal and interest (other than Standard Securitization
Undertakings) to the Borrower or any Subsidiary of the Borrower except for recourse to the
specific assets securing such Indebtedness.




     “SPC” shall have the meaning assigned to such term in Section 10.3(k).




     “Spin-Off” shall mean the distribution to the shareholders of Cendant
Corporation of all of the common stock of the Borrower and the transactions related thereto
as described on Schedule 1.1 to the Existing Credit Agreement.









 



20



     “Standard Securitization Undertakings” shall mean representations, warranties
(and any related repurchase obligations), servicer obligations, guaranties, repurchase
obligations, covenants and indemnities entered into by the Borrower or any Subsidiary of the
Borrower of a type that are reasonably customary in securitizations.




     “Statutory Reserves” shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board and any other
banking authority to which the Administrative Agent or any Lender is subject, for
Eurocurrency Liabilities (as defined in Regulation D). Such reserve percentages shall
include those imposed under Regulation D. LIBOR Loans shall be deemed to constitute
Eurocurrency Liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets which may be
available from time to time to any Lender under Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any reserve
percentage.




     “Subsidiary” shall mean with respect to any Person, any corporation,
association, joint venture, partnership or other business entity (whether now existing or
hereafter organized) of which at least a majority of the voting stock or other ownership
interests having ordinary voting power for the election of directors (or the equivalent) is,
at the time as of which any determination is being made, owned or controlled by such Person
or one or more subsidiaries of such Person or by such Person and one or more subsidiaries of
such Person.




     “Subsidiary Borrower” shall mean any Subsidiary of the Borrower that becomes a
party hereto pursuant to Section 10.9(b)(i) until such time as such Subsidiary Borrower is
removed as a party hereto pursuant to Section 10.9(b)(ii).




     “Subsidiary Borrower Obligations” shall mean the Obligations of any Subsidiary
Borrower.




     “Swingline Commitment” shall mean the obligation of the Swingline Lender to
make Swingline Loans pursuant to Section 2.5 in an aggregate principal amount at any one
time outstanding not to exceed $100,000,000.




     “Swingline Exposure” shall mean, 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 Revolving Percentage of the total Swingline Exposure at such time.




     “Swingline Lender” shall mean Bank of America, in its capacity as the lender of
Swingline Loans.




     “Swingline Loans” shall have the meaning given such term in Section 2.5.




     “Swingline Participation Amount” shall have the meaning given such term in
Section 2.6.




     “Syndication Agent” is defined in the preamble.




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














 



21



          “Total Revolving Commitment” shall mean, at any time, the aggregate
amount of the Lenders’ Revolving Commitments as in effect at such time. The initial Total
Revolving Commitment is $950,000,000.



          “Treaty” shall mean the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1987, the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997
and came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26,
2001), each as amended from time to time and as referred to in legislative measures of the
European Union for the introduction of, changeover to or operating of the Euro in one or
more member states.



          “Withdrawal Liability” shall mean 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.



          “WVRAP” shall mean Wyndham Vacation Resorts Asia Pacific Pty. Ltd.



          “WVRAP Facilities” shall mean one or more debt facilities, extensions of
credit, loans, securities issuances, commercial paper facilities or other forms of
Indebtedness providing for revolving credit loans, term loans, receivables financing,
(including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), notes, letters of credit,
debentures, mortgages or any other form of financing entered into by WVRAP or any of its
Subsidiaries or any successor entity (whether by asset sale, merger or otherwise) to WVRAP
or any of its Subsidiaries, in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise) or refinanced in whole or in part
from time to time.



          “Yen” and “¥” shall mean the lawful money of Japan.



2. THE LOANS




          SECTION 2.1. Commitments.



          (a) Subject to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, each Revolving Lender agrees, severally and not jointly, to make
revolving credit loans (“Revolving Credit Loans”) in Dollars to the Borrower or any
Domestic Subsidiary Borrower, at any time and from time to time on and after the Closing Date and
until the earlier of the Maturity Date and the termination of the Revolving Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed such Lender’s
Revolving Commitment minus the sum of such Lender’s pro rata share of (i) the then current
Revolving L/C Exposure and (ii) the aggregate principal amount of the Swingline Loans outstanding
at such time plus the amount by which the Competitive Loans outstanding at such time shall be
deemed to have used such Lender’s Revolving Commitment pursuant to Section 2.20 subject, however,
to the conditions that (a) at no time shall (i) the Revolving Credit Exposure exceed (ii) the Total
Revolving Commitment and (b) at all times the outstanding aggregate principal amount of all
Revolving Credit Loans made by each Revolving Lender shall equal the product of (i) the percentage
that its Revolving Commitment represents of the Total Revolving Commitment times (ii) the
outstanding aggregate principal amount of all Revolving Credit Loans made pursuant to a notice
given by the Borrower or any Subsidiary Borrower under Section 2.3.









 



22



The Revolving Commitments of the Lenders may be terminated or reduced from time to time
pursuant to Section 2.14 or Section 7.



          (b) Within the foregoing limits, the Borrower and any Domestic Subsidiary Borrower may borrow,
pay or repay and reborrow Revolving Credit Loans hereunder, on and after the Closing Date and prior
to the Maturity Date, upon the terms and subject to the conditions and limitations set forth
herein.



          SECTION 2.2. Loans.



          (a) Each Revolving Credit Loan shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their Commitments; provided, however,
that the failure of any Lender to make any Revolving Credit Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan required to be made by
such other Lender). Each Competitive Loan shall be made in accordance with the procedures set
forth in Section 2.7. The Loans comprising any Borrowing shall be (i) in the case of Competitive
Loans and LIBOR Loans, in an aggregate principal amount that is an integral multiple of $1,000,000
and not less than $5,000,000 and (ii) in the case of ABR Loans, in an aggregate principal amount
that is an integral multiple of $500,000 and not less than $5,000,000 (or, in the case of clause
(i) and clause (ii) above with respect to Revolving Credit Loans, if less, an aggregate principal
amount equal to the remaining balance of the available Total Revolving Commitment). ABR Loans
shall be denominated only in Dollars.



          (b) Each Competitive Borrowing shall be comprised entirely of LIBOR Competitive Loans or Fixed
Rate Competitive Loans, and each Revolving Credit Borrowing shall be comprised entirely of LIBOR
Revolving Credit Loans or ABR Loans, as the Borrower or any Subsidiary Borrower may request
pursuant to Section 2.7 or 2.3, as applicable. Each Lender may at its option make any LIBOR 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
or such Subsidiary Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Interest Rate Type may be outstanding at the same time;
provided, however, that neither the Borrower nor any Subsidiary Borrower shall be
entitled to request any Borrowing that, if made, would result in an aggregate of more than nine
separate Revolving Credit Loans of any Lender being outstanding hereunder at any one time. For
purposes of the calculation required by the immediately preceding sentence, LIBOR Revolving Credit
Loans having different Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Loans and all Loans of a single Interest Rate Type made on a single
date shall be considered a single Loan if such Loans have a common Interest Period.



          (c) Subject to Section 2.3, each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by making funds available at the Funding Office no later than 1:00 P.M. New
York City time (2:00 P.M. New York City time, in the case of an ABR Borrowing) in Federal or other
immediately available funds. Upon receipt of the funds to be made available by the Lenders to fund
any Borrowing hereunder, the Administrative Agent shall disburse such funds by depositing them into
an account of the Borrower or the relevant Subsidiary Borrower maintained with the Administrative
Agent. Competitive Loans shall be made by the Lender or Lenders whose Competitive Bids therefor
are accepted pursuant to Section 2.7 in the amounts so accepted and Revolving Credit Loans shall be
made by the Revolving Lenders, respectively pro rata in accordance with Section 2.1 and this
Section 2.2.









 



23


          (d) Notwithstanding any other provision of this Agreement, neither the Borrower nor any
Subsidiary Borrower shall be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.



          SECTION 2.3. Revolving Credit Borrowing Procedure.



          In order to effect a Revolving Credit Borrowing, the Borrower or any Domestic Subsidiary
Borrower shall hand deliver or telecopy to the Administrative Agent a Borrowing notice in the form
of Exhibit E (a) in the case of a LIBOR Borrowing, not later than 12:00 Noon, New York City time,
three Business Days before a proposed Revolving Credit Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 Noon, New York City time, on the day of a proposed Revolving Credit
Borrowing. No Fixed Rate Competitive Loan shall be requested or made pursuant to a Revolving
Credit Borrowing Request. Such notice shall be irrevocable and shall in each case specify (a)
whether the Revolving Credit Borrowing then being requested is to be a LIBOR Borrowing or an ABR
Borrowing, (b) the date of such Revolving Credit Borrowing (which shall be a Business Day) and the
amount thereof and (c) if such Borrowing is to be a LIBOR Borrowing, the Interest Period with
respect thereto. If no election as to the Interest Rate Type of a Revolving Credit Borrowing is
specified in any such notice, then the requested Revolving Credit Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any LIBOR Borrowing is specified in any such
notice, then the Borrower or the relevant Subsidiary Borrower shall be deemed to have selected an
Interest Period of one month’s duration. If the Borrower or the relevant Subsidiary Borrower shall
not have given notice in accordance with this Section 2.3 of its election to refinance a Revolving
Credit Borrowing prior to the end of the Interest Period in effect for such Borrowing, then the
Borrower or the relevant Subsidiary Borrower shall (unless such Borrowing is repaid at the end of
such Interest Period) be deemed to have given notice of an election to refinance such Borrowing
with a LIBOR Borrowing of one month’s duration (or at any time after the occurrence, and during the
continuation, of a Default or an Event of Default, an ABR Borrowing). The Administrative Agent
shall promptly advise the Lenders of any notice given pursuant to this Section 2.3 and of each
Lender’s portion of the requested Revolving Credit Borrowing.



          SECTION 2.4. Use of Proceeds.



          The proceeds of the Loans shall be used (i) to refinance the Existing Credit Agreement and to
pay fees and expenses related thereto and (ii) for working capital and 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 U and X of the Board.



          SECTION 2.5. Swingline Commitment.



          (a) Subject to the terms and conditions hereof, the Swingline Lender agrees to make a portion
of the credit otherwise available to the Borrower under the Revolving Commitments from time to time
on and after the Closing Date and until the earlier of the Maturity Date and the termination of the
Revolving Commitments by making swing line loans (“Swingline Loans”) in Dollars to the
Borrower; provided that (i) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed the Swingline Commitment then in effect (notwithstanding that the
Swingline Loans outstanding at any time, when aggregated with the Swingline Lender’s other
outstanding Revolving Credit Loans, may exceed the Swingline Commitment then in effect) and (ii)
the Borrower shall not request, and the Swingline Lender shall not make, any Swingline Loan if,
after giving effect to the making of such Swingline Loan, the Revolving Credit Exposure exceed the
Total Revolving Commitment. On and after the Closing Date and until the earlier of the Maturity
Date and the termination of the Revolving Commitments, the Borrower may use the Swingline
Commitment by borrowing, repaying and









 



24



reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be
ABR Loans only.



          (b) The Borrower shall repay 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 Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Credit Loan is
borrowed, the Borrower shall repay all Swingline Loans then outstanding.



          (c) The Swingline Lender shall not be required to make any Swingline Loan if any Lender is a
Defaulting Lender unless (i) the Swingline Lender has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to the Swingline Lender (in its sole discretion) with the
Borrower or such Lender to eliminate the Swingline Lender’s actual or potential Fronting Exposure
(after giving effect to Section 2.31(a)(iv)) with respect to the Defaulting Lender arising from
either the Swingline Loan then proposed to be made or that Swingline Loan and all other Swingline
Loans as to which the Swingline Lender has Fronting Exposure, as it may elect in its sole
discretion or (ii) the Fronting Exposure resulting from such Defaulting Lender has been reallocated
pursuant to Section 2.31(a)(iv).



          SECTION 2.6. Procedure for Swingline Borrowing; Refunding of Swingline Loans.



          (a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give
the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than 2:00 P.M., New York City time, on
the day of the proposed Borrowing), specifying (i) the amount to be borrowed and (ii) the date of
such notice which shall be the requested borrowing date (which shall be a Business Day). Each
borrowing under the Swingline Commitment shall be in an amount equal to $500,000 or a whole
multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the date
of the Borrowing specified in a notice in respect of Swingline Loans, the Swingline Lender shall
make available to the Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available to the Borrower on
such borrowing date by depositing such proceeds in the account of the Borrower with the
Administrative Agent or such other account as the Borrower may specify to the Administrative Agent
in writing on such borrowing date in immediately available funds; provided,
however, the proceeds of any Swingline Loans may not be used to repay any other Loans.



          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon, New York City time, request each Revolving Lender to make, and each Revolving Lender hereby
agrees to make, a Revolving Credit Loan, in an amount equal to such Revolving Lender’s Revolving
Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall
make the amount of such Revolving Credit Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York City time, one Business
Day after the date of such notice. The proceeds of such Revolving Credit Loans shall be
immediately made available by the Administrative Agent to the Swingline Lender for application by
the Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably
authorizes the Swingline Lender to charge the Borrower’s accounts with the Administrative Agent (up
to the amount available in each such account)









 



25



in order to immediately pay the amount of such Refunded Swingline Loans to the extent amounts
received from the Revolving Lenders are not sufficient to repay in full such Refunded Swingline
Loans.



          (c) If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to
Section 2.6(b), one of the events described in Section 7(f) or (g) shall have occurred and be
continuing with respect to the Borrower or if for any other reason, as determined by the Swingline
Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section
2.6(b), each Revolving Lender shall, on the date such Revolving Credit Loan was to have been made
pursuant to the notice referred to in Section 2.6(b), purchase for cash an undivided participating
interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the
“Swingline Participation Amount”) equal to (i) such Revolving Lender’s Revolving Percentage
times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding
that were to have been repaid with such Revolving Credit Loans.



          (d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account
of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such Lender’s pro rata
portion of such payment if such payment is not sufficient to pay the principal of and interest on
all Swingline Loans then due); provided, however, that in the event that such
payment received by the Swingline Lender is required to be returned, such Revolving Lender will
return to the Swingline Lender any portion thereof previously distributed to it by the Swingline
Lender.



          (e) Each Revolving Lender’s obligation to make the Loans referred to in Section 2.6(b) and to
purchase participating interests pursuant to Section 2.6(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such Revolving Lender or the Borrower may have against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 4, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Fundamental Document by
the Borrower, any other Loan Party or any other Revolving Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.



          SECTION 2.7. Competitive Bid Procedure — Competitive Loans.



          (a) In order to request Competitive Bids for Competitive Loans, the Borrower or any Subsidiary
Borrower shall hand deliver or telecopy to the Administrative Agent a duly completed Competitive
Bid Request in the form of Exhibit D-1, to be received by the Administrative Agent (i) in the case
of a LIBOR Competitive Loan, not later than 10:00 A.M., New York City time, four Business Days
before a proposed Competitive Borrowing, (ii) in the case of a Local Fixed Rate Competitive Loan,
not later than 10:00 A.M., New York City time, four Business Day before a proposed Competitive
Borrowing and (iii) in the case of a Domestic Fixed Rate Competitive Loan, not later than 10:00
A.M., New York City time, four Business Days before a proposed Competitive Borrowing. No ABR Loan
shall be requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid Request
that does not conform substantially to the format of Exhibit D-1 may be rejected in the
Administrative Agent’s sole discretion, and the Administrative Agent shall promptly notify the
Borrower or the relevant Subsidiary Borrower of such rejection by telecopier. Such request for
Competitive Bids shall in each case refer to this Agreement and specify (i) whether the Borrowing
then being requested is to be a LIBOR Borrowing









 



26



or a Fixed Rate Borrowing, (ii) the date of such Borrowing (which shall be a Business Day) and
the aggregate principal amount thereof, which shall be in a minimum principal amount of $10,000,000
(or the Dollar Equivalent thereof) and in an integral multiple of $5,000,000 (or the Dollar
Equivalent thereof) (or if less, an aggregate principal amount equal to the remaining balance of
the available Total Revolving Commitment), (iii) the Interest Period with respect thereto (which
may not end after the Maturity Date), (iv) the Currency with respect thereto and (v) if such
requested Borrowing is to consist of Local Competitive Loans, the jurisdiction in which such
requested Borrowing is to be made. Promptly after its receipt of a Competitive Bid Request that is
not rejected as aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit D-2) the Revolving Lenders to bid, on the terms and subject to the conditions of
this Agreement, to make Competitive Loans pursuant to the Competitive Bid Request.



          (b) Each Revolving Lender may, in its sole discretion, make one or more Competitive Bids for
Competitive Loans to the Borrower or any Subsidiary Borrower responsive to a Competitive Bid
Request. Each Competitive Bid for a Competitive Loan by a Revolving Lender must be received by the
Administrative Agent via telecopier, in the form of Exhibit D-3, (i) in the case of a LIBOR
Competitive Loan, not later than 9:30 A.M., New York City time, three Business Days before a
proposed Competitive Borrowing, (ii) in the case of a Local Fixed Rate Competitive Loan, not later
than 9:30 A.M., New York City time, three Business Days before a proposed Competitive Borrowing,
(iii) in the case of a Domestic Fixed Rate Competitive Loan, not later than 9:30 A.M., New York
City time, three Business Days before a proposed Competitive Borrowing. Multiple bids will be
accepted by the Administrative Agent. Competitive Bids for Competitive Loans that do not conform
substantially to the format of Exhibit D-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower or the relevant Subsidiary Borrower, and
the Administrative Agent shall notify the Lender making such nonconforming bid of such rejection as
soon as practicable. Each Competitive Bid for a Competitive Loan shall refer to this Agreement and
specify (i) the principal amount (which shall be in a minimum principal amount of $10,000,000 (or
the Dollar Equivalent thereof) and in an integral multiple of $5,000,000 (or the Dollar Equivalent
thereof) and which may equal the entire principal amount of the Competitive Borrowing requested by
the Borrower or the relevant Subsidiary Borrower) of the Competitive Loan or Loans that the Lender
is willing to make to the Borrower or the relevant Subsidiary Borrower, (ii) the Competitive Bid
Rate or Rates at which the Lender is prepared to make the Competitive Loan or Loans, (iii) the
Interest Period or Interest Periods with respect thereto and (iv) in the case of a Local
Competitive Loan, the location of and contact information for the lending office. If any Revolving
Lender shall elect not to make a Competitive Bid, such Lender shall so notify the Administrative
Agent via telecopier (i) in the case of LIBOR Competitive Loans, not later than 9:30 A.M., New York
City time, three Business Days before a proposed Competitive Borrowing, (ii) in the case of Local
Fixed Rate Competitive Loans, not later than 9:30 A.M., New York City time, three Business Days
before the proposed Competitive Borrowing and (iii) in the case of Domestic Fixed Rate Competitive
Loans, not later than 9:30 A.M., New York City time, three Business Days before a proposed
Competitive Borrowing; provided, however, that failure by any Revolving Lender to
give such notice shall not cause such Lender to be obligated to make any Competitive Loan as part
of such proposed Competitive Borrowing. A Competitive Bid for a Competitive Loan submitted by a
Lender pursuant to this paragraph (b) shall be irrevocable.



          (c) The Administrative Agent shall promptly notify the Borrower or the relevant Subsidiary
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid Rate or Rates and the
principal amount of each Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Lender that made each bid. The Administrative Agent shall send a copy of all
Competitive Bids to the Borrower or the relevant Subsidiary Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section 2.7.









 



27


          (d) The Borrower or the relevant Subsidiary Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any Competitive Bid referred
to in paragraph (c) above. The Borrower or the relevant Subsidiary Borrower shall notify the
Administrative Agent by telephone, promptly confirmed by telecopier in the form of a Competitive
Bid Accept/Reject Letter whether and to what extent it has decided to accept or reject any or all
of the bids referred to in paragraph (c) above, (i) in the case of a LIBOR Competitive Loan, not
later than 10:30 A.M., New York City time, three Business Days before a proposed Competitive
Borrowing, (ii) in the case of a Local Fixed Rate Borrowing, not later than 10:30 A.M., New York
City time, three Business Days before a proposed Competitive Borrowing and (iii) in the case of a
Domestic Fixed Rate Borrowing, not later than 10:30 A.M., New York City time, three Business Days
before a proposed Competitive Borrowing; provided, however, that (A) the failure by
the Borrower or the relevant Subsidiary Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (B) the Borrower or the relevant
Subsidiary Borrower shall not accept a bid made at a particular Competitive Bid Rate if the
Borrower or the relevant Subsidiary Borrower has decided to reject a bid made at a lower
Competitive Bid Rate, (C) the aggregate amount of the Competitive Bids accepted by the Borrower or
the relevant Subsidiary Borrower shall not exceed the principal amount specified in the Competitive
Bid Request, (D) if the Borrower or the relevant Subsidiary Borrower shall accept a bid or bids
made at a particular Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by the Borrower or the relevant Subsidiary Borrower to exceed the
amount specified in the Competitive Bid Request, then the Borrower or such Subsidiary Borrower
shall accept a portion of such bid or bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids accepted at lower Competitive
Bid Rates with respect to such Competitive Bid Request (it being understood that acceptance in the
case of multiple bids at such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such bid at such Competitive Bid Rate) and (E) except pursuant to clause (D) above,
no bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $10,000,000 (or the Dollar Equivalent thereof) and an integral multiple of
$5,000,000 (or the Dollar Equivalent thereof) (or if less, an aggregate principal amount equal to
the remaining balance of the available Total Revolving Commitment); provided
further, however, that if a Competitive Loan must be in an amount less than
$10,000,000 because of the provisions of clause (D) above, such Competitive Loan shall be in a
minimum principal amount of $1,000,000 (or the Dollar Equivalent thereof) or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of portions of multiple bids at
a particular Competitive Bid Rate pursuant to clause (D), the amounts shall be rounded to integral
multiples of $1,000,000 (or the Dollar Equivalent thereof) in a manner that shall be in the
discretion of the Borrower or the relevant Subsidiary Borrower. A notice given by the Borrower or
the relevant Subsidiary Borrower pursuant to this paragraph (d) shall be irrevocable.



          (e) The Administrative Agent shall promptly notify each bidding Lender whether its Competitive
Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopy sent
by the Administrative Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted. If the Borrower accepts one or more offers made by any Lender or Lenders, each such
Lender shall, no later than 10:30 AM, New York City time, on the applicable day of each proposed
Competitive Borrowing, make funds under its applicable Competitive Loan available to the Borrower
in full. Upon repayment by the Borrower of any Competitive Loans, all payments shall be made
directly to each respective Lender.



          (f) No Competitive Bid Request shall be made within ten Business Days (or upon reasonable
notice to the Lenders, such other number of days as Borrower and Administrative Agent may agree) of
any other Competitive Bid Request. The Borrower and the Subsidiary Borrowers shall not be entitled
to have more than four Competitive Bid Loans outstanding at any time.









 



28


          (g) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Revolving Lender, it shall submit such bid directly to the Borrower or the relevant Subsidiary
Borrower one quarter of an hour earlier than the latest time at which the other Revolving Lenders
are required to submit their bids to the Administrative Agent pursuant to paragraph (b) above.



          (h) The Borrower shall pay a non-refundable competitive loan fee in an amount equal to $2,500
for each request by the Borrower or a Subsidiary Borrower for a Competitive Loan, regardless of
whether such Competitive Loan is borrowed, such fees to be payable on the date of such request.



          (i) All notices required by this Section 2.7 shall be given in accordance with Section 10.1.



          SECTION 2.8. Refinancings.



          The Borrower or any Subsidiary Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same Currency and of the same Interest Rate Type (or of the same or different
Interest Rate Type, in the case of Loans denominated in Dollars) made pursuant to Section 2.7 or
pursuant to a notice under Section 2.3, as applicable, subject to the conditions and limitations
set forth herein and elsewhere in this Agreement, including refinancings of Competitive Borrowings
with Revolving Credit Borrowings and Revolving Credit Borrowings with Competitive Borrowings;
provided, however, that at any time after the occurrence, and during the
continuation, of a Default or an Event of Default, a Borrowing (other than a Competitive Borrowing)
or portion thereof may only be refinanced with an ABR Borrowing. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.10 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the Borrower or the relevant Subsidiary
Borrower pursuant to Section 2.2(c); provided, however, that (a) if the principal
amount extended by a Lender in a refinancing is greater than the principal amount extended by such
Lender in the Borrowing being refinanced, then such Lender shall pay such difference to the
Administrative Agent for distribution to the Borrower or the relevant Subsidiary Borrower or any
Lenders described in clause (b) below, as applicable, (b) if the principal amount extended by a
Lender in the Borrowing being refinanced is greater than the principal amount being extended by
such Lender in the refinancing, the Administrative Agent shall return the difference to such Lender
out of amounts received pursuant to clause (a) above, and (c) to the extent any Lender fails to pay
the Administrative Agent amounts due from it pursuant to clause (a) above, any Loan or portion
thereof being refinanced with such amounts shall not be deemed repaid in accordance with this
Section 2.08 and, to the extent of such failure, the Borrower or the relevant Subsidiary Borrower
shall pay such amount to the Administrative Agent as required by Section 2.12; and (d) to the
extent the Borrower or the relevant Subsidiary Borrower fails to pay to the Administrative Agent
any amounts due in accordance with Section 2.12 as a result of the failure of a Lender to pay the
Administrative Agent any amounts due as described in clause (c) above, the portion of any
refinanced Loan deemed not repaid shall be deemed to be outstanding solely to the Lender which has
failed to pay the Administrative Agent amounts due from it pursuant to clause (a) above to the full
extent of such Lender’s portion of such Loan.



          SECTION 2.9. Fees.



          (a) The Borrower agrees to pay to each Revolving Lender, through the Administrative Agent, on
the 15th day (or, on the next Business Day, if the 15th day is not a Business Day) of the calendar
month immediately following the end of each fiscal quarter, commencing with the fiscal quarter
ending June 30, 2010, and on the date on which the Revolving Commitment of such Lender shall be
terminated as provided herein, a facility fee (a “Facility Fee”), at the rate per annum
from time to time in









 



29



effect in accordance with Section 2.24, on the average daily amount of the Revolving
Commitment of such Lender, whether used or unused, during the preceding quarter (or shorter period
commencing with the Closing Date, or ending with (i) the Maturity Date or (ii) any date on which
the Revolving Commitment of such Lender shall be terminated). All Facility Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days. The Facility Fee due to
each Revolving Lender shall commence to accrue on the Closing Date, shall be payable in arrears and
shall cease to accrue on the earlier of the Maturity Date and the termination of the Commitment of
such Lender as provided herein.



          (b) The Borrower agrees to pay the Administrative Agent the fees in the amounts and on the
dates as set forth in any written and executed fee agreements with the Administrative Agent.



          (c) All fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none
of the fees shall be refundable under any circumstances.



          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 Revolving Lender the then unpaid principal amount of each Revolving Credit Loan
of such Lender made to the Borrower on the Maturity Date for such Loans and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan in accordance with Section 2.5(b),
or in each case, on such earlier date on which the Loans become due and payable pursuant to Section
7. The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans
made to the Borrower from time to time outstanding from the Closing Date until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.11. Each Subsidiary
Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Revolving Credit Loan of such Lender made to such
Subsidiary Borrower on the Maturity Date or on such earlier date on which Loans become due and
payable pursuant to Section 7. Each Subsidiary Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Loans made to such Subsidiary Borrower from time to time
outstanding from the Closing Date until payment in full thereof at the rates per annum, and on the
dates, set forth in Section 2.11.



          (b) The Borrower unconditionally promises to pay to the Administrative Agent, for the account
of each Lender that makes a Competitive Loan to the Borrower, on the last day of the Interest
Period applicable to such Competitive Loan, the principal amount of such Competitive Loan. The
Borrower further unconditionally promises to pay interest on each such Competitive Loan for the
period from and including the date of Borrowing of such Competitive Loan on the unpaid principal
amount thereof from time to time outstanding at the applicable rate per annum determined as
provided in, and payable as specified in, Section 2.11. Each Subsidiary Borrower unconditionally
promises to pay to the Administrative Agent, for the account of each Lender that makes a
Competitive Loan to such Subsidiary Borrower, on the last day of the Interest Period applicable to
such Competitive Loan, the principal amount of such Competitive Loan made to such Subsidiary
Borrower. Each Subsidiary Borrower further unconditionally promises to pay interest on each such
Competitive Loan made to such Subsidiary Borrower for the period from and including the date of
Borrowing of such Competitive Loan on the unpaid principal amount thereof from time to time
outstanding at the applicable rate per annum determined as provided in, and payable as specified
in, Section 2.11.



          (c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower and any Subsidiary Borrower to such Lender resulting from
each Loan of such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.









 



30


          (d) The Administrative Agent shall maintain the Register pursuant to Section 10.3(e), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder, the Interest Rate Type thereof and each Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
and any Subsidiary Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower or any Subsidiary Borrower and each
Lender’s share thereof.



          (e) The entries made in the Register and the accounts of each Lender maintained pursuant to
this Section 2.10 shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower and any Subsidiary
Borrower therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any error therein, shall not
in any manner affect the obligation of the Borrower or any Subsidiary Borrower to repay (with
applicable interest) the Loans made to the Borrower or the relevant Subsidiary Borrower by such
Lender in accordance with the terms of this Agreement.



          SECTION 2.11. Interest on Loans.



          (a) Subject to the provisions of Section 2.12, the Loans comprising each LIBOR Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days)
at a rate per annum equal to (i) in the case of each LIBOR Revolving Credit Loan, LIBOR for the
Interest Period in effect for such Borrowing plus the applicable LIBOR Spread from time to time in
effect and (ii) in the case of each LIBOR Competitive Loan, LIBOR for the Interest Period in effect
for such Borrowing plus the Margin offered by the Lender making such Loan and accepted by the
Borrower or the relevant Subsidiary Borrower pursuant to Section 2.7. Interest on each LIBOR
Borrowing shall be payable on each applicable Interest Payment Date.



          (b) Subject to the provisions of Section 2.12, the Loans comprising each ABR Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366
days, as the case may be) at a rate per annum equal to the Alternate Base Rate plus the applicable
margin, if any, for ABR Loans from time to time in effect pursuant to Section 2.24.



          (c) Subject to the provisions of Section 2.12, each Fixed Rate Competitive Loan shall bear
interest at a rate per annum (computed on the basis of the actual number of days elapsed over a
year of 360 days) equal to the fixed rate of interest offered by the Lender making such Loan and
accepted by the Borrower or the relevant Subsidiary Borrower pursuant to Section 2.7.



          (d) Interest on each Loan shall be payable in arrears on each Interest Payment Date applicable
to such Loan. The LIBOR or the Alternate Base Rate for each Interest Period or day within an
Interest Period shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.



          SECTION 2.12. Interest on Overdue Amounts.



          If the Borrower or any Subsidiary Borrower shall default in the payment of the principal of,
or interest on, any Loan or any other amount becoming due hereunder, the Borrower or such
Subsidiary Borrower shall, at the request of the Required Lenders, from time to time pay interest,
to the extent permitted by Applicable Law, on such defaulted amount up to (but not including) the
date of actual payment (after as well as before a judgment) at a rate equal to (a) in the case of
the remainder of the then current Interest Period for any LIBOR Loan or Fixed Rate Competitive
Loan, the rate applicable to such









 



31



Loan under Section 2.11 plus 2% per annum and (b) in the case of any other Loan or amount, the
rate that would at the time be applicable to an ABR Loan under Section 2.11 plus 2% per annum.



          SECTION 2.13. Alternate Rate of Interest.



          In the event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a LIBOR Loan, the Administrative Agent shall have
determined that Dollar deposits or deposits in the applicable Optional Currency in the amount of
the requested principal amount of such LIBOR Loan are not generally available in the London
Interbank market, or that the rate at which such Dollar deposits or deposits in the applicable
Optional Currency are being offered will not adequately and fairly reflect the cost to any Lender
of making or maintaining its portion of such LIBOR Loans during such Interest Period, or that
reasonable means do not exist for ascertaining LIBOR, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopier notice of such determination to the Borrower or
the relevant Subsidiary Borrower and the Lenders. In the event of any such determination, until
the Administrative Agent shall have determined that circumstances giving rise to such notice no
longer exist, (a) any request by the Borrower or any Subsidiary Borrower for a LIBOR Competitive
Loan pursuant to Section 2.7 shall be of no force and effect and shall be denied by the
Administrative Agent and (b) any request by the Borrower or any Subsidiary Borrower for a LIBOR
Borrowing pursuant to Section 2.3 shall be deemed to be a request for an ABR Loan. Each
determination by the Administrative Agent hereunder shall be conclusive absent manifest error.



          SECTION 2.14. Termination, Reduction and Increase of Revolving Commitments.



          (a) The Revolving Commitments of all of the Revolving Lenders shall be automatically
terminated on the Maturity Date.



          (b) Subject to Section 2.15(b), upon at least one Business Day of prior written or telecopy
notice to the Administrative Agent (which notice shall have been received not later than 12:00
Noon, New York City time), the Borrower may at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Total Revolving Commitment; provided,
however, that (i) each partial reduction of the Total Revolving Commitment shall be in an
integral multiple of $1,000,000 and in a minimum principal amount of $5,000,000 and (ii) the
Borrower shall not be entitled to make any such termination or reduction that would reduce the
Total Revolving Commitment to an amount less than the sum of the aggregate outstanding principal
amount of the Revolving Credit Loans plus the aggregate outstanding principal amount of the
Swingline Loans plus the then current L/C Exposure. Each notice delivered by the Borrower pursuant
to this Section 2.14(b) shall be irrevocable; provided that a notice of termination of the
Revolving 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.



          (c) Except as otherwise set forth herein, each reduction in the Total Revolving Commitment
hereunder shall be made ratably among the Lenders in accordance with their respective Revolving
Commitments. The Borrower shall pay to the Administrative Agent for the account of the Revolving
Lenders on the date of each termination or reduction in the Total Revolving Commitment, the
Facility Fees on the amount of the Total Revolving Commitment so terminated or reduced accrued to
the date of such termination or reduction.



          (d) If the Total Revolving Commitment is less than $1,100,000,000 at any time (excluding any
Incremental Facilities incurred under Section 2.28) and the Borrower wishes to increase









 



32



the aggregate Revolving Commitments at any time when no Default or Event of Default has
occurred and is continuing, it shall notify the Administrative Agent in writing of the amount (the
“Offered Increase Amount”) of such proposed increase (such notice, a “Commitment
Increase Notice”), and the Administrative Agent shall notify each Lender of such proposed
increase and provide such additional information regarding such proposed increase as any Lender may
reasonably request. The Borrower may, at its election, (i) offer one or more of the Lenders the
opportunity to participate in all or a portion of the Offered Increase Amount pursuant to paragraph
(f) below and/or (ii) with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), offer one or more additional banks, financial institutions or other
entities the opportunity to participate in all or a portion of the Offered Increase Amount pursuant
to paragraph (e) below. Each Commitment Increase Notice shall specify which Lenders and/or banks,
financial institutions or other entities the Borrower desires to participate in such Commitment
increase. The Borrower or, if requested by the Borrower, the Administrative Agent, will notify
such Lenders and/or banks, financial institutions or other entities of such offer.



          (e) Any Eligible Assignee which the Borrower selects to offer participation in the increased
Revolving Commitments and which elects to become a party to this Agreement and provide a Revolving
Commitment in an amount so offered and accepted by it pursuant to Section 2.14(d)(ii) shall execute
a New Revolving Lender Supplement with the Borrower and the Administrative Agent, substantially in
the form of Exhibit G-1, whereupon such bank, financial institution or other Person (herein called
a “New Lender”) shall become a Lender for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 2.1 shall be deemed to be amended to add the name and Revolving Commitment of such New
Lender, provided that the Revolving Commitment of any such new Lender shall be in an amount
not less than $5,000,000.



          (f) Any Revolving Lender which accepts an offer to it by the Borrower to increase its
Revolving Commitment pursuant to Section 2.14(d)(i) shall, in each case, execute a Commitment
Increase Supplement with the Borrower and the Administrative Agent, substantially in the form of
Exhibit H, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement
with respect to the full amount of its Revolving Commitment as so increased, and Schedule 2.1 shall
be deemed to be amended to so increase the Revolving Commitment of such Lender.



          (g) Notwithstanding anything to the contrary in this Section 2.14, (i) in no event shall any
transaction effected pursuant to this Section 2.14 cause the Total Revolving Commitment to exceed
$1,100,000,000 (not including Incremental Term Loans and Revolving Commitment Increases) and (ii)
no Lender shall have any obligation to increase its Revolving Commitment unless it agrees to do so
in its sole discretion.



          SECTION 2.15. Prepayment of Loans.



          (a) Prior to the Maturity Date, the Borrower and any Subsidiary Borrower shall have the right
at any time to prepay any Borrowing (other than a Competitive Borrowing), in whole or in part,
subject to the requirements of Section 2.19 but otherwise without premium or penalty, upon prior
written or telecopy notice to the Administrative Agent before 12:00 Noon, New York City, time at
least one Business Day in the case of an ABR Loan and at least three Business Days in the case of a
LIBOR Loan; provided, however, that each such partial prepayment shall be in an
integral multiple of $1,000,000 and in a minimum aggregate principal amount of $5,000,000. Neither
the Borrower nor any Subsidiary Borrower shall have the right to prepay any Competitive Borrowing
without the consent of the relevant Lender.









 



33


          (b) On any date when the sum of the Revolving Credit Exposure (after giving effect to any
Borrowings effected on such date) exceeds the Total Revolving Commitment, the Borrower shall make a
mandatory prepayment of the Revolving Credit Loans (or cause any Subsidiary Borrower to make such a
prepayment) in such amount as may be necessary so that the Revolving Credit Exposure after giving
effect to such prepayment does not exceed the Total Revolving Commitment then in effect. Any
prepayments required by this paragraph shall be applied to outstanding ABR Loans up to the full
amount thereof before they are applied to outstanding LIBOR Revolving Credit Loans.



          (c) Each notice of prepayment pursuant to Section 2.15(a) shall specify the specific
Borrowing(s), the prepayment date and the aggregate principal amount of each Borrowing to be
prepaid, shall be irrevocable and shall commit the Borrower or the relevant Subsidiary Borrower to
prepay such Borrowing(s) by the amount stated therein. All prepayments under this Section 2.15
shall be accompanied by accrued interest on the principal amount being prepaid, to the date of
prepayment.



          SECTION 2.16. Eurocurrency Reserve Costs.



          The Borrower and any Subsidiary Borrower shall pay to the Administrative Agent for the account
of each Lender, so long as such Lender shall be required under regulations of the Board to maintain
reserves with respect to liabilities or assets consisting of, or including, Eurocurrency
Liabilities (as defined in Regulation D of the Board), additional interest on the unpaid principal
amount of each LIBOR Loan made to the Borrower or such Subsidiary Borrower by such Lender, from the
date of such Loan until such Loan is paid in full, at an interest rate per annum equal at all times
during the Interest Period for such Loan to the remainder obtained by subtracting (i) LIBOR for
such Interest Period from (ii) the rate obtained by multiplying LIBOR as referred to in clause (i)
above by the Statutory Reserves of such Lender for such Interest Period. Such additional interest
shall be determined by such Lender and notified to the Borrower or the relevant Subsidiary Borrower
(with a copy to the Administrative Agent) not later than five Business Days before the next
Interest Payment Date for such Loan, and such additional interest so notified to the Borrower or
the relevant Subsidiary Borrower by any Lender shall be payable to the Administrative Agent for the
account of such Lender on each Interest Payment Date for such Loan.



          SECTION 2.17. Reserve Requirements; Change in Circumstances.



          (a) Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely
and exclusively by Section 2.23, if after the Closing Date any change in Applicable Law or
regulation or in the interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the force of law) (i)
shall 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, or (ii) shall
impose on any Lender or the London Interbank market any other condition affecting this Agreement or
any LIBOR Loan or Fixed Rate Competitive Loan made by such Lender, and the result of any of the
foregoing shall be to increase the cost (other than the amount of Taxes, if any) to such Lender of
making or maintaining any LIBOR Loan or Fixed Rate Competitive Loan or to reduce the amount (other
than a reduction resulting from an increase in Taxes, if any) of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount
deemed in good faith by such Lender to be material, then the Borrower or the relevant Subsidiary
Borrower shall pay such additional amount or amounts as will compensate such Lender for such
increase or reduction to such Lender.



          (b) Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely
and exclusively by Section 2.23, if, after the Closing Date, any Lender shall have determined in
good faith that the adoption after the Closing Date of any applicable law, rule, regulation or
guideline









 



34



regarding capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or any Lending
Office of such Lender) with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital
of the Lender’s holding company, if any, as a consequence of its obligations hereunder to a level
below that which such Lender (or its holding company) could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such Lender’s policies or
the policies of its holding company, as the case may be, with respect to capital adequacy) by an
amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the
Administrative Agent for the account of such Lender such additional amount or amounts as will
compensate such Lender for such reduction upon demand by such Lender.



          (c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as
shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the
case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause
(i), shall be delivered to the Borrower or the relevant Subsidiary Borrower and shall be conclusive
absent manifest error. The Borrower or the relevant Subsidiary Borrower shall pay the
Administrative Agent for the account of such Lender the amount shown as due on any such certificate
within 10 Business Days after its receipt of the same.



          (d) Failure on the part of any Lender to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital with respect to any
Interest Period shall not constitute a waiver of such Lender’s rights to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction in return on
capital with respect to such Interest Period or any other Interest Period. The protection of this
Section 2.17 shall be available to each Lender regardless of any possible contention of invalidity
or inapplicability of the law, regulation or condition which shall have been imposed.



          (e) Each Lender agrees that, as promptly as practicable after it becomes aware of the
occurrence of an event or the existence of a condition that (i) would cause it to incur any
increased cost under this Section 2.17, Section 2.18, Section 2.23 or Section 2.26 or (ii) would
require the Borrower or any Subsidiary Borrower to pay an increased amount under this Section 2.17,
Section 2.18, Section 2.23 or Section 2.26, it will notify the Borrower and such Subsidiary
Borrower of such event or condition and, to the extent not inconsistent with such Lender’s internal
policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such
Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of
such Lender if as a result thereof the additional monies which would otherwise be required to be
paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or
Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or
the increased costs which would otherwise be required to be paid in respect of such Loans or
Letters of Credit pursuant to this Section 2.17, Section 2.18, Section 2.23 or Section 2.26 would
be materially reduced or the Taxes payable under Section 2.23, or other amounts otherwise payable
under this Section 2.17, Section 2.18 or Section 2.26 would be materially reduced, and if, as
determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans
or Letters of Credit through such other Lending Office would not otherwise materially adversely
affect such Loans or Letters of Credit or such Lender. For the avoidance of doubt, nothing in this
Section shall affect or postpone any of the obligations of the Borrower or any Subsidiary Borrower
or the rights of any Lender pursuant to Section 2.23.



          (f) In the event any Lender shall have delivered to the Borrower or any Subsidiary Borrower a
notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.18,









 



35



or if the Borrower or such Subsidiary Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 or
Section 2.23, the Borrower may (but subject in any such case to the payments required by Section
2.18), upon at least five Business Days’ prior written or telecopier notice to such Lender and the
Administrative Agent, identify to the Administrative Agent a lending institution reasonably
acceptable to the Administrative Agent which will purchase the Commitment, the amount of
outstanding Loans, any participations in Letters of Credit from the Lender providing such notice
and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any
participations in Letters of Credit to such replacement lending institution pursuant to Section
10.3. Such notice shall specify an effective date for such assignment and at the time thereof, the
Borrower and any relevant Subsidiary Borrower shall pay all accrued interest, accrued Facility Fees
and all other amounts (including without limitation all amounts payable under this Section) owing
hereunder to such Lender as at such effective date for such assignment.



          SECTION 2.18. Change in Legality.



          (a) Notwithstanding anything to the contrary herein contained, if, after the Closing Date, any
change in any law or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful for any Lender to
make or maintain any LIBOR Loan or to give effect to its obligations as contemplated hereby, then,
by written notice to the Borrower and to the Administrative Agent, such Lender may:




          (i) declare that LIBOR Loans will not thereafter be made by such Lender hereunder,
whereupon such Lender shall not submit a Competitive Bid in response to a request for
LIBOR Competitive Loans and the Borrower and any Subsidiary Borrower shall be prohibited
from requesting LIBOR Revolving Credit Loans from such Lender hereunder unless such
declaration is subsequently withdrawn; and




          (ii) require that all outstanding LIBOR Loans made by it be converted to ABR Loans,
in which event (A) all such LIBOR Loans shall be automatically converted to ABR Loans as
of the effective date of such notice as provided in Section 2.18(b) and (B) all payments
and prepayments of principal which would otherwise have been applied to repay the
converted LIBOR Loans shall instead be applied to repay the ABR Loans resulting from the
conversion of such LIBOR Loans; provided that the principal amount of any such
LIBOR Loan denominated in any Optional Currency shall be converted to the Dollar
Equivalent there of concurrently with its conversion to an ABR Loan.



          (b) For purposes of this Section 2.18, a notice to the Borrower by any Lender pursuant to
Section 2.18(a) shall be effective on the date of receipt thereof by the Borrower.



          SECTION 2.19. Reimbursement of Lenders.



          (a) The Borrower or the relevant Subsidiary Borrower shall reimburse each Lender on demand for
any loss incurred or to be incurred by it in the reemployment of the funds released (i) by any
prepayment (for any reason) of any LIBOR or Fixed Rate Competitive Loan if such Loan is repaid
other than on the last day of the applicable Interest Period for such Loan or (ii) in the event
that after the Borrower or the relevant Subsidiary Borrower delivers a notice of borrowing under
Section 2.3 in respect of LIBOR Revolving Credit Loans or a Competitive Bid Accept/Reject Letter
under Section 2.7(d), pursuant to which it has accepted bids of one or more of the Lenders, the
applicable Loan is not made on the first day of the Interest Period specified by the Borrower or
the relevant Subsidiary Borrower for any reason other than (I) a suspension or limitation under
Section 2.18 of the right of the Borrower or the relevant Subsidiary Borrower to select a LIBOR
Loan or (II) a breach by a Lender of its obligations









 



36



hereunder. In the case of such failure to borrow, such loss shall be the amount as reasonably
determined by such Lender as the excess, if any of (A) the amount of interest which would have
accrued to such Lender on the amount not borrowed, at a rate of interest equal to the interest rate
applicable to such Loan pursuant to Section 2.11, for the period from the date of such failure to
borrow, to the last day of the Interest Period for such Loan which would have commenced on the date
of such failure to borrow, over (B) the amount realized by such Lender in reemploying the funds not
advanced during the period referred to above. In the case of a payment other than on the last day
of the Interest Period for a Loan, such loss shall be the amount as reasonably determined by the
Administrative Agent as the excess, if any, of (A) the amount of interest which would have accrued
on the amount so paid at a rate of interest equal to the interest rate applicable to such Loan
pursuant to Section 2.11, for the period from the date of such payment to the last day of the then
current daily Interest Period for such Loan, over (B) the amount equal to the product of (x) the
amount of the Loan so paid times (y) the current daily yield on U.S. Treasury Securities
(at such date of determination) with maturities approximately equal to the remaining Interest
Period for such Loan times (z) the number of days remaining in the Interest Period for such
Loan. Each Lender shall deliver to the Borrower or the relevant Subsidiary Borrower from time to
time one or more certificates setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by such Lender, which certificates shall be conclusive
absent manifest error. The Borrower or the relevant Subsidiary Borrower shall pay to the
Administrative Agent for the account of each Lender the amount shown as due on any certificate
within thirty days after its receipt of the same.



          (b) In the event the Borrower or the relevant Subsidiary Borrower fails to prepay any Loan on
the date specified in any prepayment notice delivered pursuant to Section 2.15(a), the Borrower or
the relevant Subsidiary Borrower on demand by any Lender shall pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for any loss incurred by
such Lender as a result of such failure to prepay, including, without limitation, any loss, cost or
expenses incurred by reason of the acquisition of deposits or other funds by such Lender to fulfill
deposit obligations incurred in anticipation of such prepayment. Each Lender shall deliver to the
Borrower or the relevant Subsidiary Borrower and the Administrative Agent from time to time one or
more certificates setting forth the amount of such loss (and in reasonable detail the manner of
computation thereof) as determined by such Lender, which certificates shall be conclusive absent
manifest error.



          SECTION 2.20. Pro Rata Treatment.



          (a) Except as permitted under Sections 2.16, 2.17, 2.18, 2.19, 2.26, 2.29, 2.31 or as set
forth anywhere else in this Agreement or any other Loan Document,




          (i) each Revolving Credit Borrowing, each payment or prepayment of principal of any
Revolving Credit Borrowing, each payment of interest on the Revolving Credit Loans, each
payment of the Facility Fees, each reduction of the Total Revolving Commitment and each
refinancing of any Borrowing with, or conversion of any Borrowing to, a Revolving Credit
Borrowing, or continuation of any Borrowing as a Revolving Credit Borrowing, shall be
allocated pro rata among the Revolving Lenders in accordance with their respective
Revolving Percentages, in each case with respect to such Revolving Lender’s respective
tranche of Loans;




          (ii) Each payment of principal of any Competitive Borrowing shall be allocated pro
rata among the Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising such
Borrowing.









 



37


          (b) For purposes of determining the available Revolving Commitments of the Lenders at any
time, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving
Commitments of the Lenders (including those Lenders that shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Revolving Commitments.



          (c) Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such
Borrowing computed in accordance with Section 2.1, to the next higher or lower whole dollar amount.



          SECTION 2.21. Right of Setoff.



          If any Event of Default shall have occurred and be continuing and the Required Lenders shall
have directed the Administrative Agent to declare the Loans immediately due and payable pursuant to
Section 7, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by such Lender and any other indebtedness at
any time owing by such Lender to, or for the credit or the account of, (i) the Borrower, against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement and
the Loans to the Borrower held by such Lender, or (ii) any Subsidiary Borrower, against any of and
all the obligations of such Subsidiary Borrower now or hereafter existing under this Agreement and
the Loans to such Subsidiary Borrower held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such Loans and although such Obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower or such Subsidiary Borrower,
as applicable, after any such setoff and application made by such Lender, but the failure to give
such notice shall not affect the validity of such setoff and application. The rights of each
Lender under this Section 2.21 are in addition to other rights and remedies (including other rights
of setoff) which such Lender may have.



          SECTION 2.22. Manner of Payments.



          All payments by the Borrower and any Subsidiary Borrower hereunder shall be made in Dollars,
except that prepayments or repayments in respect of Loans shall be made in the Currency in which
such Loan is denominated, in Federal or other immediately available funds without deduction, setoff
or counterclaim at the Funding Office no later than 1:00 P.M., New York City time, on the date on
which such payment shall be due. Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan to, but excluding, the date on which such Loan is paid or
refinanced with a Loan of a different Interest Rate Type.



          SECTION 2.23. Taxes.



          (a) Any and all payments by or on account of any obligation of the Borrower or any Subsidiary
Borrower hereunder or under any Fundamental Document (including payments made by the Subsidiary
Borrowers in satisfaction of the Subsidiary Borrower Obligations) shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower or any Subsidiary Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the Borrower or the relevant Subsidiary Borrower shall make such
deductions, (ii) the Borrower or the relevant Subsidiary Borrower shall pay such amounts to the
relevant Governmental Authority in accordance with Applicable Law, and (iii) the sum payable by the
Borrower or Subsidiary Borrower shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 2.23) the
Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made.









 



38


          (b) In addition, the Borrower or any relevant Subsidiary Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with Applicable Law.



          (c) If the United States Internal Revenue Service or other Governmental Authority of the
United States of America or other jurisdiction asserts a claim against the Administrative Agent or
a Lender that the full amount of Indemnified Taxes or Other Taxes has not been paid (including
where such Indemnified Taxes or Other Taxes are imposed directly on the Administrative Agent or any
Lender), the Borrower and each Subsidiary Borrower shall indemnify the Administrative Agent and
each Lender within 10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower or such Subsidiary
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.23) 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 (other
than those resulting from the Administrative Agent or Lender’s gross negligence or willful
misconduct). A certificate (along with a copy of the applicable documents from the United States
Internal Revenue Service or other Governmental Authority of the United States of America or other
jurisdiction that asserts such claim) as to the amount of such payment or liability and setting
forth in reasonable detail the calculation and basis for such payment or liability delivered to the
Borrower or the relevant Subsidiary Borrower by a Lender or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.



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



          (e) Any Lender that is entitled to an exemption from or reduction of withholding Tax with
respect to payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent) (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased), at the time such Lender becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant purchases the related
participation) and at any other time or times reasonably requested by the Borrower, 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. Each
Lender and Administrative Agent that is a United States Person, as defined in Section 7701(a)(30)
of the Code (other than Persons that are corporations or otherwise exempt from United States backup
withholding Tax), shall deliver at the time(s) and in the manner(s) prescribed by Applicable Law,
to the Borrower and the Administrative Agent (as applicable), a properly completed and duly
executed United States Internal Revenue Form W-9, or any successor form, certifying that such
Person is exempt from United States backup withholding Tax on payments made hereunder.



          (f) If the Administrative Agent or a Lender determines, in its sole good-faith discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower or any Subsidiary Borrower or with respect to which the Borrower or any Subsidiary
Borrower has paid additional amounts pursuant to this Section 2.23, it shall pay over such refund
to the Borrower or such Subsidiary Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower or such Subsidiary Borrower under this Section 2.23 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









 



39



such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower or such Subsidiary
Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower or such Subsidiary 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 2.23 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, any Subsidiary Borrower or any other Person.



          (g) Each Lender agrees (i) that as between it and the Borrower, any Subsidiary Borrower or the
Administrative Agent, it shall be the Person to deduct and withhold Taxes, and to the extent
required by law it shall deduct and withhold Taxes, on amounts that such Lender may remit to any
other Person(s) by reason of any undisclosed transfer or assignment of an interest in this
Agreement to such other Person(s) pursuant to paragraph (g) of Section 10.3 and (ii) to indemnify
the Borrower, any Subsidiary Borrower and the Administrative Agent and any officers, directors,
agents, or employees of the Borrower, any Subsidiary Borrower or the Administrative Agent against,
and to hold them harmless from, any Tax, interest, additions to Tax, penalties, reasonable counsel
and accountants’ fees, disbursements or payments arising from the assertion by any appropriate
Governmental Authority of any claim against them relating to a failure to withhold Taxes as
required by Applicable Law with respect to amounts described in clause (i) of this paragraph (g).



          (h) Each assignee of a Lender’s interest in this Agreement in conformity with Section 10.3
shall be bound by this Section 2.23, so that such assignee will have all of the obligations and
provide all of the forms and statements and all indemnities, representations and warranties
required to be given under this Section 2.23.



          SECTION 2.24. Certain Pricing Adjustments.



          The Facility Fee and applicable LIBOR Spread for Revolving Credit Loans in effect from time to
time shall be determined in accordance with the following table:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable LIBOR	 	Total
	Moody’s/S&P	 	Facility Fee	 	Spread	 	Drawn Pricing
	Rating Equivalent	 	(in Basis Points)	 	(in Basis Points)	 	(in Basis Points)
	> A3/A-
	 	 	20.0	 	 	 	205.0	 	 	 	225.0	 
	> Baa1/BBB+
	 	 	25.0	 	 	 	225.0	 	 	 	250.0	 
	> Baa2/BBB
	 	 	37.5	 	 	 	237.5	 	 	 	275.0	 
	> Baa3/BBB-
	 	 	50.0	 	 	 	250.0	 	 	 	300.0	 
	> Ba1/BB+
	 	 	62.5	 	 	 	262.5	 	 	 	325.0	 
	< Ba1/BB+
	 	 	75.0	 	 	 	300.00	 	 	 	375.0	 






          In the event that S&P and Moody’s ratings on the Borrower’s senior non-credit enhanced
unsecured long-term debt are not equivalent to each other, the higher rating of S&P or Moody’s will
determine the Facility Fee and applicable LIBOR Spread, unless the ratings are more than one level
apart, in which case the rating one level below the higher rating of S&P or Moody’s will be
determinative. In the event that (a) the Borrower’s senior non-credit enhanced unsecured long-term
debt is not rated by both of S&P or Moody’s (for any reason, including if S&P or Moody’s shall
cease to be in the business of rating corporate debt obligations) or (b) if the rating system of
any of S&P or Moody’s shall change, then an amendment shall be negotiated in good faith to the
references to specific ratings in the table above to









 



40



reflect such changed rating system or the unavailability of ratings from such rating agency
(including an amendment to provide for the substitution of an equivalent or successor ratings
agency). In the event that the Borrower’s senior unsecured long-term debt is not rated by either
of S&P or Moody’s, then the Facility Fee and applicable LIBOR Spread shall be deemed to be
calculated as if the lowest rating category set forth above applied until such time as an amendment
to the table above shall be agreed to. Any increase in the Facility Fee or applicable LIBOR Spread
determined in accordance with the foregoing table shall become effective on the date of
announcement or publication by the Borrower or the applicable rating agency of a reduction in such
rating or, in the absence of such announcement or publication, on the effective date of such
decreased rating, or on the date of any request by the Borrower to the applicable rating agency not
to rate its senior unsecured long-term debt or on the date any of such rating agencies announces it
shall no longer rate the Borrower’s senior unsecured long-term debt. Any decrease in the Facility
Fee or applicable LIBOR Spread shall be effective on the date of announcement or publication by any
of such rating agencies of an increase in rating or in the absence of announcement or publication
on the effective date of such increase in rating.



          The applicable margin for ABR Loans shall be the applicable LIBOR Spread minus 100
Basis Points (but not less than 0%).



          SECTION 2.25. Prepayments Required Due to Currency Fluctuation.



          (a) Not later than 1:00 P.M., New York City time, on the last Business Day of each fiscal
quarter or at such other time as is reasonably determined by the Administrative Agent (the
“Calculation Time”), the Administrative Agent shall determine the Dollar Equivalent of the
Revolving Credit Exposure as of such date.



          (b) If at the Calculation Time, the Dollar Equivalent of the Revolving Credit Exposure exceeds
the Total Revolving Commitment by 5% or more, then within five Business Days after notice thereof
to the Borrower from the Administrative Agent, the Borrower shall prepay Revolving Credit Loans or
Swingline Loans (or cause any Subsidiary Borrower to make such prepayment) in an aggregate
principal amount at least equal to such excess. Nothing set forth in this Section 2.25(b) shall be
construed to require the Administrative Agent to calculate compliance under this Section 2.25(b)
other than at the times set forth in Section 2.25(a).



          SECTION 2.26. Letters of Credit.



          (a) (i) Upon the terms and subject to the conditions hereof, each Issuing Lender agrees to
issue standby letters of credit (the letters of credit issued on and after the Closing Date
pursuant to this Section 2.26, together with the Existing Letters of Credit, collectively, the
“Letters of Credit”) payable in Dollars from time to time after the Closing Date and prior
to the earlier of the Maturity Date and the termination of the Revolving Commitments, upon the
request of the Borrower or any Subsidiary Borrower, provided that (A) neither the Borrower
nor any Subsidiary Borrower shall request that any Letter of Credit be issued if, after giving
effect thereto, the Revolving Exposure would exceed the Total Revolving Commitment or the aggregate
L/C Exposure would exceed $350,000,000, (B) in no event shall any Issuing Lender issue (x) any
Letter of Credit having an expiration date later than five Business Days before the Maturity Date
or (y) any Letter of Credit having an expiration date more than one year after its date of
issuance, provided that any Letter of Credit with a one-year tenor may provide for the
automatic extension thereof for additional one-year periods (which shall in no event extend beyond
the date referred to in clause (x) above), (C) neither Borrower nor any Subsidiary Borrower shall
request that an Issuing Lender issue any Letter of Credit if, after giving effect to such issuance
or reinstatement, the L/C Exposure would exceed the Total Revolving Commitment and (D) an Issuing
Lender shall be prohibited from issuing Letters of Credit hereunder upon the occurrence and during
the continuance of an Event of









 



41



Default (provided that such Issuing Lender shall have received notice of such Event of
Default pursuant to Section 8.4 hereof and provided further that such notice shall
be received at least 24 hours prior to the date on which any Letter of Credit is to be issued).
The Administrative Agent will, upon request of any Issuing Lender, confirm the total amount of L/C
Exposure and the aggregate outstanding Loans to such Issuing Lender. Letters of Credit outstanding
under the Existing Credit Agreement on the Closing Date shall be deemed to have been issued under
this Agreement on the Closing Date.




          (ii) Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the applicable
Issuing Lender, a participation in such Letter of Credit in an amount equal to such
Revolving Lender’s Revolving Percentage multiplied by the stated amount of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
such Issuing Lender, an amount equal to such Lender’s Revolving Percentage of each amount
paid by such Issuing Lender in respect of each Letter of Credit (as such amount may be
increased as set forth below) issued by such Issuing Lender and not reimbursed by the
Borrower or the relevant Subsidiary Borrower on the date due as provided in this Section
2.26 and of any reimbursement payment required to be refunded to the Borrower or the
relevant Subsidiary Borrower for any reason. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit and its other obligations under this Section 2.26 are absolute and
unconditional and shall not be affected by any circumstance whatsoever, including (A) any
amendment or extension of any Letter of Credit, (B) the occurrence and continuance of a
Default or an Event of Default, (C) reduction or termination of the Commitments, (D) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Issuing Lender, the Borrower, any Subsidiary Borrower or any other Person for any reason
whatsoever or (E) any other occurrence, event or condition, whether or not similar to any of
the foregoing; and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.




          (iii) Neither the Administrative Agent, the Lenders, any Issuing Lender, 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, 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 any Issuing Lender; provided that the foregoing shall not be construed to
excuse any Issuing Lender from liability to the Borrower or the relevant Subsidiary Borrower
to the extent of any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Borrower and any Subsidiary Borrower to the extent
permitted by applicable law) suffered by the Borrower or the relevant Subsidiary Borrower
that are caused by such Issuing Lender’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof.




          (iv) Each Letter of Credit may, at the option of the applicable Issuing Lender, provide
that such Issuing Lender may (but shall not be required to) pay all or any part of the
maximum amount which may at any time be available for drawing thereunder to the beneficiary
thereof upon the occurrence of an Event of Default and the acceleration of the maturity of
the Loans, provided that, if payment is not then due to the beneficiary, such
Issuing Lender shall deposit the funds in question in an account with such Issuing Lender to
secure payment to the beneficiary and any funds so deposited shall be paid to the
beneficiary of the Letter of Credit if









 



42



conditions to such payment are satisfied or returned to the Administrative Agent for
distribution to the Lenders (or, if all Obligations shall have been paid in full in cash, to
the Borrower or the relevant Subsidiary Borrower) if no payment to the beneficiary has been
made and the final date available for drawings under the Letter of Credit has passed. Each
payment or deposit of funds by an Issuing Lender as provided in this paragraph shall be
treated for all purposes of this Agreement as a drawing duly honored by such Issuing Lender
under the related Letter of Credit.




          (v) The Issuing Lender shall not be required to issue Letters of Credit if (i) any
Lender is a Defaulting Lender, unless (A) the Issuing Lender has entered into arrangements,
including the delivery of Cash Collateral, satisfactory to the Issuing Lender (in its sole
discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or
potential Fronting Exposure (after giving effect to Section 2.31(a)(iv)) with respect to the
Defaulting Lender arising from either the Letter of Credit then proposed to be issued or
that Letter of Credit and all other L/C Exposure as to which the Issuing Lender has Fronting
Exposure, as it may elect in its sole discretion or (B) the Fronting Exposure resulting from
such Defaulting Lender has been reallocated pursuant to Section 2.31(a)(iv); (ii) any order,
judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any Applicable
Law applicable to the Issuing Lender or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the Issuing
Lender with respect to such Letter of Credit any restriction, reserve or capital requirement
(for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the Issuing Lender in good faith
deems material to it or (iii) the issuance of such Letter of Credit would violate one or
more policies of the Issuing Lender applicable to letters of credit generally and applicable
to customers of such Issuing Lender generally.




          (vi) Each Issuing Lender shall, no later than the third Business Day following the last
day of each month, provide to Administrative Agent a schedule of the Letters of Credit
issued by it, in form and substance reasonably satisfactory to Administrative Agent, showing
the date of issuance of each Letter of Credit, the account party, the original face amount
(if any), the expiration date, and the reference number of any Letter of Credit outstanding
at any time during such month, and showing the aggregate amount (if any) payable by Borrower
to such Issuing Lender during such month pursuant to Section 2.26(f). Promptly after the
receipt of such schedule from each Issuing Lender, Administrative Agent shall provide to
Lenders a summary of such schedules.




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



          (b) Whenever the Borrower or any Subsidiary Borrower desires the issuance of a Letter of
Credit, it shall hand deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the applicable Issuing Lender) to the Administrative Agent and
the applicable Issuing Lender a written notice no later than 1:00 P.M. (New York time) at least
five Business









 



43



Days prior to the proposed date of issuance provided, however, the Borrower or the relevant
Subsidiary Borrower and the Administrative Agent and such Issuing Lender may agree to a shorter
time period. That notice shall specify (i) the Issuing Lender for such Letter of Credit, (ii) the
proposed date of issuance (which shall be a Business Day under the laws of the jurisdiction of the
applicable Issuing Lender), (iii) the face amount of the Letter of Credit, (iv) the expiration date
of the Letter of Credit and (v) the name and address of the beneficiary and (vi) such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. Such
notice shall be accompanied by a brief description of the underlying transaction and upon the
request of the applicable Issuing Lender, the Borrower or the relevant Subsidiary Borrower shall
provide additional details regarding the underlying transaction. If requested by an Issuing
Lender, the Borrower or the relevant Subsidiary Borrower also shall submit a letter of credit
application on the Issuing Lender’s standard form in connection with any request for a Letter of
Credit, which form shall be furnished in accordance with Section 10.1. 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 or the
relevant Subsidiary Borrower to, or entered into by the Borrower or the relevant Subsidiary
Borrower with, any Issuing Lender relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. Concurrently with the giving of written notice of a request for the
issuance of a Letter of Credit, the Borrower or the relevant Subsidiary Borrower shall specify a
precise description of the documents and the verbatim text of any certificate to be presented by
the beneficiary of such Letter of Credit which, if presented by such beneficiary prior to the
expiration date of the Letter of Credit, would require the applicable Issuing Lender to make
payment under the Letter of Credit; provided that the applicable Issuing Lender, in its
reasonable discretion, may require customary changes in any such documents and certificates. Upon
issuance of any Letter of Credit, the applicable Issuing Lender shall notify the Administrative
Agent of the issuance of such Letter of Credit. Promptly after receipt of such notice, the
Administrative Agent shall notify each Lender of the issuance and the amount of each such Lender’s
respective participation therein.



          (c) The payment of drafts under any Letter of Credit shall be made in accordance with the
terms of such Letter of Credit and, in that connection, any Issuing Lender shall be entitled to
honor any drafts and accept any documents presented to it by the beneficiary of such Letter of
Credit in accordance with the terms of such Letter of Credit and believed by such Issuing Lender in
good faith to be genuine. No Issuing Lender shall have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing documents which may be presented to it, but shall be
responsible only to determine in accordance with customary commercial practices that the documents
which are required to be presented before payment or acceptance of a draft under any Letter of
Credit have been delivered and that they comply on their face with the requirements of that Letter
of Credit.



          (d) If any Issuing Lender shall be requested to make payment on any draft presented under a
Letter of Credit, such Issuing Lender shall give notice of such request for payment to the
Administrative Agent and the Administrative Agent shall give notice to each Revolving Lender no
later than 3:00 P.M. New York City time of its respective participation therein on behalf of such
Issuing Lender. Each Revolving Lender hereby authorizes and requests such Issuing Lender to
advance for its account pursuant to the terms hereof its share of such payment based upon its
participation in the Letter of Credit and agrees to reimburse such Issuing Lender by making payment
to the Administrative Agent for the account of such Issuing Lender in immediately available funds
for the amount so advanced on its behalf no later than 4:00 P.M. New York City time on the date
such Issuing Lender makes such request. If such reimbursement is not made by any Revolving Lender
in immediately available funds on the same day on which such Issuing Lender shall have made payment
on any such draft presented under a Letter of Credit, such Lender shall pay interest thereon to the
Administrative Agent, for the account of such Issuing Lenders, at a rate per annum equal to the
Issuing Lender’s cost of obtaining overnight funds in the New York Federal Funds Market.














 




44


          (e) In the case of any draft presented under a Letter of Credit (provided that
the conditions specified in Section 4.1 are then satisfied, and notwithstanding the limitations as
to the aggregate principal amount of ABR Loans set forth in Section 2.2(a), as to the time of
funding of a Borrowing set forth in Section 2.2(c) and as to the time of notice of a proposed
Borrowing set forth in Section 2.3), payment by the applicable Issuing Lender of such draft shall
constitute an ABR Loan hereunder, and interest shall accrue from the date the applicable Issuing
Lender makes such payment, which ABR Loan, upon and to the extent that a Revolving Lender shall
have made reimbursement to the applicable Issuing Lender pursuant to Section 2.26(d), shall
constitute such Lender’s ABR Loan hereunder. If any draft is presented under a Letter of Credit
and (i) the conditions specified in Section 4.2 are not satisfied or (ii) if the Revolving
Commitments have been terminated, then the Borrower or the relevant Subsidiary Borrower will, upon
demand by the Administrative Agent or the applicable Issuing Lender, on the same Business Day of
such draft (or on the next Business Day if notice of such draft is received after 10:00 A.M. New
York City time), pay to the Administrative Agent, for the account of the applicable Issuing Lender,
in immediately available funds, the full amount of such draft.




          (f) (i) The Borrower and each Subsidiary Borrower agree to pay the following amounts to the
Administrative Agent for the account of each Issuing Lender (or, in the case of clauses (B) and (C)
below, directly to such Issuing Lender) with respect to Letters of Credit issued by such Issuing
Lender hereunder:





          (A) with respect to drawings made under any Letter of Credit issued for the
account of the Borrower or such Subsidiary Borrower, interest, payable on demand, on
the amount paid by such Issuing Lender in respect of each such drawing from the date
of the drawing to, but excluding, the date such amount is reimbursed by the Borrower
or such Subsidiary Borrower at a rate which is at all times equal to 2% per annum
(without duplication of any amounts payable under Section 2.12) in excess of the
Alternate Base Rate plus the applicable margin therefore calculated pursuant to
Section 2.24; provided that no such default interest shall be payable if such
reimbursement is made (a) from the proceeds of Revolving Credit Loans or (b)
otherwise in compliance with Section 2.26(e);




          (B) the customary issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of such Issuing Lender relating to letters of
credit as from time to time in effect (with such fees and standard costs and charges
to be due and payable on demand and nonrefundable); and




          (C) a fronting fee computed at the rate agreed to by the Borrower and the
applicable Issuing Lender (but, in any event, not greater than 0.20% per annum),
computed on the daily amount available to be drawn under each outstanding Letter of
Credit issued by such Issuing Lender, such fee to be due and payable in arrears on
and through the last day of each fiscal quarter of the Borrower, on the Maturity
Date and on the expiration of the last outstanding Letter of Credit.




          (ii) The Borrower and each Subsidiary Borrower agree to pay to the Administrative
Agent for distribution to each Revolving Lender in respect of all outstanding Letters of
Credit issued for the account of the Borrower or such Subsidiary Borrower, such Lender’s
Revolving Percentage of a commission on the daily amount available to be drawn under such
outstanding Letters of Credit calculated at a rate per annum equal to the LIBOR Spread
applicable to Revolving Credit Loans from time to time in effect hereunder;
provided, however, any commissions otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender
has not provided Cash Collateral satisfactory to the Issuing Lender pursuant to this
Section 2.26 shall be payable, to









 



45



the maximum extent permitted by applicable law, to the other Lenders in accordance
with the upward adjustment in their respective Revolving Percentages allocable to such
Letter of Credit pursuant to Section 2.31(a)(iv), with the balance of such fee, if any,
payable to the Issuing Lender for its own account. Such commission shall be payable in
arrears on and through the last day of each fiscal quarter of the Borrower and on the
later of the Maturity Date and the expiration of the last outstanding Letter of Credit.




          (iii) For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 2.26(a)(vii).




          (iv) Promptly upon receipt by any Issuing Lender or the Administrative Agent (as
applicable) of any amount described in clauses (i) or (ii) of this Section 2.26(f), or any
amount described in Section 2.26(e) previously reimbursed to the applicable Issuing Lender
by the Revolving Lenders, such Issuing Lender shall distribute such amount to the
Administrative Agent and the Administrative Agent shall distribute to each Revolving
Lender (other than to any Revolving Lender which has failed to reimburse the Issuing
Lender for the applicable drawing) its pro rata share of such amount.




          (v) The obligation of the Borrower and each Subsidiary Borrower to reimburse the
Issuing Lender for each drawing under each Letter of Credit and to repay each Letter of
Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the
following:




               (a) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement related hereto;




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




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




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




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









 



46

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




          (g) If at any time when an Event of Default shall have occurred and be continuing, any Letters
of Credit shall remain outstanding, then either the applicable Issuing Lender(s), the
Administrative Agent or the Required Lenders may, at its or their option, require the Borrower or
the relevant Subsidiary Borrower to deposit Cash Equivalents in a Cash Collateral Account in an
amount equal to the full amount of the L/C Exposure or to furnish other security acceptable to the
Administrative Agent and the applicable Issuing Lender(s), provided that the obligation to deposit
such cash collateral shall become effective within one Business Day after the Borrower and/or such
Subsidiary Borrower receives notice from the applicable Issuing Lender, the Administrative Agent or
the Required Lenders, and provided, further that 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 (f) or (g) of Section 7. Such deposit shall be
held by the Administrative Agent as collateral for the Obligations. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made in Cash Equivalents and at the option and sole discretion of the Administrative Agent
and at the Borrower’s and/or the relevant Subsidiary Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such
account. Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse
the applicable Issuing Lender(s) for the amount of any drawings honored under Letters of Credit
issued by it. If the Borrower or any Subsidiary Borrower is required to deposit Cash Equivalents
(or other security) pursuant to the provisions of this Section 2.26(g) as a result of the
occurrence of an Event or Default, such amount (to the extent not applied as set forth in the
preceding provisions of this paragraph) shall be returned by the Administrative Agent to the
Borrower or such Subsidiary Borrower within three Business Days after such Event of Default has
been cured or waived.




          (h) If at any time, the sum of the Revolving Credit Exposure exceeds the aggregate Revolving
Commitments, then the Administrative Agent may, at its option, require the Borrower and/or any
Subsidiary Borrower to deposit Cash Equivalents in a Cash Collateral Account in an amount
sufficient to eliminate such excess or to furnish other security for such excess acceptable to the
Administrative Agent. Any amounts so delivered pursuant to the preceding sentence shall be applied
to reimburse the applicable Issuing Lender(s) for the amount of any drawings honored under Letters
of Credit issued for the account of the Borrower or such Subsidiary Borrower and held as cash
collateral for the Obligations. If the Borrower or any Subsidiary Borrower is required to deposit
Cash Equivalents (or other security) pursuant to the provisions of this Section 2.26(h), such
amount (to the extent not applied as set forth in the preceding sentence) shall be returned by the
Administrative Agent to the Borrower or such Subsidiary Borrower within three Business Days after
such excess is reduced to $0.




          (i) Upon the request of the Administrative Agent, each Issuing Lender shall furnish to the
Administrative Agent copies of any Letter of Credit issued by such Issuing Lender and such related
documentation as may be reasonably requested by the Administrative Agent.




          (j) If the Borrower so requests in any applicable Letter of Credit Application, the Issuing
Lender may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated amount thereof after any drawing
thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by
the Issuing Lender, the Borrower shall not be required to make a specific request to the Issuing
Lender to permit such reinstatement. Once











 



47



an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not require) the Issuing Lender
to reinstate all or a portion of the stated amount thereof in accordance with the provisions of
such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the Issuing Lender to decline to reinstate all or any portion of the stated amount thereof
after a drawing thereunder by giving notice of such non-reinstatement within a specified number of
days after such drawing (the “Non-Reinstatement Deadline”), the Issuing Lender shall not
permit such reinstatement if it has received a notice (which may be by telephone or in writing) on
or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B)
from the Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.2 is not then satisfied (treating such reinstatement as an
issuance of a Letter of Credit for purposes of this clause) and, in each case, directing the
Issuing Lender not to permit such reinstatement.




          (k) Notwithstanding the termination of the Commitments and the payment of the Loans, the
obligations of the Borrower, any Subsidiary Borrower and the Lenders under this Section 2.26 shall
remain in full force and effect until the Administrative Agent, each Issuing Lender and the Lenders
shall have been irrevocably released from their obligations with regard to any and all Letters of
Credit.




          SECTION 2.27. New Local Facilities.




          (a) The Borrower or any Subsidiary Borrower may at any time or from time to time after the
Closing Date, by notice to the Administrative Agent, request the Revolving Lenders to designate a
portion of their respective Revolving Commitments to make Revolving Extensions of Credit
denominated in Dollars and any Optional Currency in a jurisdiction inside or outside of the United
States pursuant to a newly established sub-facility under the Revolving Facility (each, a “New
Local Facility”); provided that (i) both at the time of any such request and upon the
effectiveness of any Local Facility Amendment referred to below, no Default or Event of Default
shall have occurred and be continuing, (ii) the Borrower and its Subsidiaries shall be in
compliance with the covenants set forth in Sections 6.5 and 6.6 as of the last day of the most
recently ended fiscal quarter and (iii) if applicable, a Subsidiary Borrower for such new Local
Facility shall be designated pursuant to Section 10.9(b); provided further that (i)
Letters of Credit and Swingline Loans shall not be issued or made under a New Local Facility unless
the Borrower, the Administrative Agent, and, as applicable, the Swingline Lender and the Issuing
Lender have agreed and (ii) no Lender shall be required to make Revolving Extensions of Credit in
excess of its Revolving Commitment. Each New Local Facility shall be in a minimum Dollar Equivalent
amount of $10,000,000, and the aggregate Dollar Equivalent amounts of the New Local Facilities
shall not exceed $200,000,000 at any time. Each notice from the Borrower pursuant to this Section
2.27 shall set forth the requested amount and proposed terms of the relevant New Local Facility.
Revolving Lenders wishing to designate a portion of their Revolving Commitments to a New Local
Facility (each, a “New Local Facility Lender”) shall have such portion of their Revolving
Commitment designated to such New Local Facility on a pro rata basis in accordance with the
aggregate Revolving Commitments of the other applicable New Local Facility Lenders unless otherwise
agreed by the Borrower, the Administrative Agent and such New Local Facility Lender. The
designation of Revolving Commitments to any New Local Facility shall be made pursuant to an
amendment (each, a “Local Facility Amendment”) to this Agreement and, as appropriate, the
other Fundamental Documents, executed by the Loan Parties, the Administrative Agent and each New
Local Facility Lender. Any Local Facility Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Fundamental Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to implement
the provisions of this Section, a copy of which shall be made available to each Lender. The
effectiveness of any Local Facility Amendment shall be subject to the satisfaction on the date
thereof of each of the conditions set forth in Section 4.2 and such other conditions as the parties
thereto shall agree. No











 



48



Revolving Lender shall be obligated to transfer any portion of its Revolving Commitments to a
New Local Facility unless it so agrees.




          (b) Notwithstanding any provision of this Agreement to the contrary, each New Local Facility
shall be deemed to be a utilization of the Revolving Commitments and upon the effectiveness of a
New Local Facility: (i) participating interests of the Lenders in existing and future Letters of
Credit and Swingline Loans issued under the Revolving Commitments shall be reallocated based on the
respective Revolving Commitments of the Lenders after giving effect to the utilization thereof by
the New Local Facilities and (ii) future Revolving Loans shall be funded by the Lenders based on
the respective Revolving Commitments of the Lenders after giving effect to the utilization thereof
by the New Local Facilities, in each case until reallocated in accordance with this paragraph (b);
in each case subject to further adjustments based on the utilization from time to time of the
Revolving Commitments by the New Local Facilities. Payments in respect of Letters of Credit,
Swingline Loans and Revolving Loans and extensions of credit under New Local Facilities shall be
made as directed by the Administrative Agent in order to give effect to this paragraph (b).




          (c) This Section 2.27 shall supersede any provisions in Section 10.9 or any other provision of
this Agreement to the contrary as it relates to any Local Facility Amendment.




          SECTION 2.28. Incremental Credit Extensions.




          (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request (i) one or more tranches of term loans (the “Incremental Term
Loans”), (ii) one or more increases in the amount of the Total Revolving Commitment (a
“Revolving Commitment Increase”), and/or (iii) one or more new tranches of revolving
commitments (“Incremental Revolving Commitments”, and together with the Incremental Term
Loans and the Revolving Commitment Increases, the “Incremental Facilities”) be made
available under this Agreement, provided that both at the time of any such request and upon the
effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall
exist. Each tranche of Incremental Term Loans and Incremental Revolving Commitments and each
Revolving Commitment Increase shall be in an aggregate principal amount that is not less than
$10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than
$10,000,000 if such amount represents all remaining availability under the limit set forth in the
next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the
Incremental Term Loans, Incremental Revolving Commitments and Revolving Commitment Increases shall
not exceed $250,000,000 outstanding at any time. Each Incremental Facility shall (a) rank pari
passu in right of payment and of security, if any, with the Revolving Credit Loans and the other
Incremental Facilities; (b) be subject to pricing and maturity agreed to by the Borrower and the
Lenders providing such Incremental Facility; and (c) not be subject to any scheduled or mandatory
principal amortization prior to the Maturity Date (other than customary limited amortization for
institutional term loans); provided that except for pricing and maturity (as limited by the
preceding paragraph (c)), the terms and conditions applicable to the Incremental Facilities will be
as set forth in this Agreement unless otherwise approved by the Administrative Agent. Each notice
from the Borrower pursuant to this Section 2.28 shall set forth the requested amount and proposed
terms of the relevant Incremental Facility. In the case of an Incremental Term Loan Facility, the
Lenders providing such Incremental Term Loans, with the consent of the Administrative Agent, may
agree to allow the Borrower and its Subsidiaries and controlled Affiliates to become Eligible
Assignees with respect to such Incremental Term Loans under circumstances, terms and conditions to
be agreed at the time of incurrence but in all cases subject to Section 10.3(l). Incremental Term
Loans may be made and Revolving Commitment Increases may be provided by any existing Lender (but no
Lender will have an obligation to provide any portion of any Incremental Facility) or by any other
bank or other financial institution (any such other bank or other financial institution being











 



49



called an “Incremental Lender”), provided that in the event the Lenders are providing
a Revolving Commitment Increase or Incremental Revolving Commitments, the Administrative Agent,
Issuing Lender and/or Swing Line Lender, as applicable, shall have consented (not to be
unreasonably withheld, conditioned or delayed) to such Lender’s or Incremental Lender’s providing
such Incremental Facility to the extent any such consent would be required under Section 10.3 for
an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or
Incremental Lender. Commitments in respect of Incremental Facilities shall become commitments (or
in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit
Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement
pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as
appropriate, the other Fundamental Documents, executed by the Borrower, each Lender agreeing to
provide such commitment, each Incremental Lender, if any, and the Administrative Agent. The
Incremental Amendment may, with the consent of the Borrower and the Administrative Agent, effect
such amendments to this Agreement and the other Fundamental Documents (including the amendment and
restatement thereof and to provide Incremental Lenders with appropriate voting and loan assignment
rights and other provisions reflecting the terms of the applicable Incremental Facility) as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section 2.28. The Borrower will use the proceeds of the
Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be
obligated to provide any portion of any Incremental Facility unless it so agrees. Upon each
increase in the Revolving Credit Commitments pursuant to this Section 2.28 (a) each Revolving
Credit Lender immediately prior to such increase will automatically and without further act be
deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase
(each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment
Increase Lender will automatically and without further act be deemed to have assumed (in the case
of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s
participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after
giving effect to each such deemed assignment and assumption of participations, the percentage of
the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations
hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving
Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments
of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit
Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans
outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving
Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made
hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be
accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred
by any Lender in accordance with Section 10.4. The Administrative Agent and the Lenders hereby
agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence. Each Incremental Lender shall become party to this agreement upon
acceptance by the Administrative Agent of an Incremental Lender Supplement signed by such
Incremental Lender substantially in the form of Exhibit G-2.




          (b) This Section 2.28 shall supersede any provisions in Section 10.9 to the contrary.




          SECTION 2.29. Loan Modification Offers.




          (a) The Borrower may, by written notice to the Administrative Agent from time to time
beginning on the date which is 18 months after the Closing Date, make one or more offers (but
there shall not be more than two offers outstanding at any one time) (each, a “Loan
Modification Offer”) to all the Revolving Lenders to make one or more Permitted Amendments (as
defined in clause (c) below) pursuant to procedures reasonably agreed upon by the Borrower and the
Administrative Agent, including











 



50



as to minimum tranche amounts. Such notice shall set forth (i) the terms and conditions of
the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested
to become effective (which shall not be less than ten Business Days nor more than sixty Business
Days after the date of such offer). Permitted Amendments shall become effective only with respect
to the Loans and Revolving Commitments of the Revolving Lenders that accept the applicable Loan
Modification Offer (each such Lender a “Modifying Lender”). No Revolving Lenders will be
required to accept a Loan Modification Offer.




          (b) The Borrower and each Revolving Lender that accepts the Loan Modification Offer shall
execute and deliver to the Administrative Agent a Loan Modification Agreement and such other
documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of
the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Loan Modification Agreement and deliver
such Loan Modification Agreement to the Lenders. Each of the parties hereto agrees that, upon the
effectiveness of any Loan Modification Agreement, this Agreement and each other Fundamental
Document shall be deemed amended as may be necessary and appropriate (including the amendment and
restatement hereof), in the reasonable opinion of the Administrative Agent and the Borrower, to
effect the provisions of this Section 2.29. In connection therewith, the Lenders accepting such
Loan Modification Offer (and their associated commitments) may be moved into a new tranche of loans
and/or commitments hereunder and the Borrower and such Modifying Lenders will agree on the maturity
date, interest rate, fees, amount of any letter of credit sub-facility, if any, amount of any swing
line sub-facility, if any, of such new tranche of revolving credit commitments, amortization, if
any and other procedural mechanics reasonably related thereto. Contemporaneously with the creation
of such new tranche, each Modifying Lender’s Revolving Commitment shall be reduced dollar for
dollar with its commitment to such new tranche. The Borrower may, at its sole option, terminate or
reduce the aggregate Revolving Commitments of the Revolving Lenders that do not accept the Loan
Modification Offer. Additionally, to the extent the Borrower has reduced the Revolving Commitments
of Lenders that are not Modifying Lenders, it may add any other Eligible Assignee (with the consent
of the Administrative Agent and the relevant Issuing Lender, such consent not to be unreasonably
withheld or delayed) to provide a commitment to make loans on the terms set forth in such Loan
Modification Offer in an amount not to exceed the amount of the Revolving Commitments reduced
pursuant to the preceding sentence.




          (c) “Permitted Amendments” shall be (i) an extension of the final termination date of
the applicable Revolving Loans and/or Revolving Commitments of the affected Revolving Lenders
accepting the applicable Loan Modification Offer (provided that there cannot be more than three
Revolving Termination Dates without the consent of the Administrative Agent), (ii) a reduction in
the Revolving Commitments of the affected Revolving Lenders accepting the Loan Modification Offer,
(iii) the payment of the then agreed upon extension fees, if any, to the affected Revolving Lenders
accepting the applicable Loan Modification Offer, (iv) increases in pricing with respect to Loans
or other extensions of credit of Revolving Commitments of the Revolving Lenders that accept the
applicable Loan Modification Offer, if any, (v) the allocation of Letters of Credit and Swingline
Loans between any extending tranche and the non-extending tranche and (vi) other amendments which
implement the foregoing.




          (d) Permitted Amendments shall be approved by the Revolving Lenders accepting a Loan
Modification Offer, the Administrative Agent and the Borrower without the need to obtain the
approval of the other Lenders. This Section 2.29 shall supersede any provision in Section 10.9 to
the contrary. All Loans to the Borrower under this Agreement shall rank pari-passu in right of
payment.












 



51




          SECTION 2.30. Cash Collateral




          (a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the Issuing Lender (i) if the Issuing Lender has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an extension of credit under a Letter
of Credit, or (ii) if, as of the date the Letter of Credit expires, any balance under the Letters
of Credit for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then outstanding amount of all Letters of Credit. At any time that there shall
exist a Defaulting Lender and after giving effect to the commitment reallocation procedure set
forth in Section 2.31(a)(iv), in the event that Fronting Exposure still exists, immediately upon
the request of the Administrative Agent, the Issuing Lender or the Swingline Lender, the Borrower
shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all
Fronting Exposure (after giving effect to Section 2.31(a)(iv) and any Cash Collateral provided by
the Defaulting Lender).




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




          (c) Application. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under any of this Section 2.30 or Sections 2.26, 2.31 or 8.3 in respect of
Letters of Credit or Swingline Loans shall be held and applied to the satisfaction of the specific
Letters of Credit, Swingline Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other
obligations for which the Cash Collateral was so provided, prior to any other application of such
property as may be provided for herein.




          (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto, such determination to be
made in the reasonable discretion of the Administrative Agent (including by the termination of
Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following
compliance with Section 10.3)) or (ii) the Administrative Agent’s good faith determination that
there exists excess Cash Collateral; provided, however, (x) that Cash Collateral
furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default
or Event of Default (and following application as provided in this Section 2.30 may be otherwise
applied in accordance with Section 8.3), and (y) the Person providing Cash Collateral and the
Issuing Lender or Swingline Lender, as applicable, may agree that Cash Collateral shall not be
released but instead held to support future anticipated Fronting Exposure or other obligations.












 



52




          SECTION 2.31. Defaulting Lenders




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





          (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.9.




          (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity and including any amounts made available to the
Administrative Agent by that Defaulting Lender pursuant to Section 8.3, shall be applied at
such time or times as may be determined by the Administrative Agent as follows: first, to
the payment of any amounts owing by that Defaulting Lender to the Administrative Agent
hereunder; second, to the payment on a pro-rata basis of any amounts owing by that
Defaulting Lender to the Issuing Bank or Swingline Lender hereunder; third, if so determined
by the Administrative Agent or requested by an Issuer Lender or Swingline Lender to be held
in a Cash Collateral Account for future funding obligations of that Defaulting Lender of any
participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower may request
(so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which that Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth if so determined by the
Administrative Agent and the Borrower, to be held in escrow in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting Lender to
fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders,
the Issuer Lender or Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the Issuing Lender or Swingline Lender against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of
amounts owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans
or Letters of Credit in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or Letters of Credit were made at a time when the
conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied
solely to pay the Loans of, and reimbursement obligations owed to all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans, or reimbursement
obligations owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid
or payable to a Defaulting Lender that are applied (or placed in escrow) to pay amounts owed
by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.31 shall be
deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably
consents hereto. Promptly following (x) termination of this Agreement (including the
termination of all Letters of Credit issued hereunder) and the payment of all amounts owed
under this Agreement (other than unasserted contingent obligations which by their terms
survive the termination of this Agreement) or (y) a Lender ceasing to be a Defaulting Lender
pursuant to Section 2.31(b), all amounts, if any, held by the Administrative Agent pursuant
to this Section 2.31(a)(ii) shall be returned to the applicable Defaulting Lender(s) (or, in
the case of clause (y), the applicable Lender(s) that have ceased to be Defaulting Lender(s)
pursuant to Section 2.31(b)).









 



53



          (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive
any facility fee pursuant to Section 2 for any period during which that Lender is a
Defaulting Lender only to the extent allocable to the sum of (1) the outstanding amount of
the Revolving Credit Loans funded by it and (2) its Revolving Percentage of the stated
amount Letters of Credit and Swingline Loans for which Cash Collateral has been provided
(and the Borrower shall (A) be required to pay to each of the Issuing Lender and the
Swingline Lender, as applicable, the amount of such fee allocable to its Fronting Exposure
arising from that Defaulting Lender and (B) not be required to pay the remaining amount of
such fee that otherwise would have been required to have been paid to that Defaulting
Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided
in Section 2.26(f).




          (iv) Reallocation of Revolving Percentages to Reduce Fronting Exposure. If any
Revolving L/C Exposure or Swingline Exposure exist at the time a Lender is a Defaulting
Lender:




               (x) such Revolving L/C Exposure or Swingline Exposure will automatically be reallocated
(effective on the day such Lender becomes a Defaulting Lender) among the non-Defaulting
Lenders on a pro-rata basis in accordance with their respective Revolving Commitment
(without giving effect to the Revolving Commitment of such Defaulting Lender); provided that
(A) no non-Defaulting Lender’s Revolving Percentage of the Revolving Loans, the Revolving
L/C Exposure and the Swingline Exposure may in any event exceed its Revolving Commitment as
in effect at the time of such reallocation, (B) neither such reallocation nor any payment by
a non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim
any Loan Party, the Administrative Agent, any Issuing Lender, the Swingline Lender or any
other Lender may have against such Defaulting Lender or cause such Defaulting lender to be a
non-Defaulting Lender and (C) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists;




               (y) to the extent any portion (the “unallocated portion”) of the Defaulting
Lender’s Revolving L/C Exposure or Swingline Exposure cannot be reallocated to
non-Defaulting Lenders the Borrower will, not later than three Business Days after written
demand therefor by the Administrative Agent (at the direction of any Issuing Lender or the
Swingline Lender), (A) Cash Collateralize in full its obligations to the Issuing Lenders in
respect of the unreallocated portion of such Revolving L/C Exposure, (B) prepay in full its
obligations to the Swingline Lender in respect of the unreallocated portion of such
Swingline Exposure or (C) make other arrangements reasonably satisfactory to the
Administrative Agent and to the Issuing Lenders and the Swingline Lender in their sole
discretion to protect them against the risk of non-payment by such Defaulting Lender; and




               (z) to the extent the unreallocated portion of any Revolving L/C Exposure is Cash
Collateralized pursuant to clause (y) above, such Cash Collateral will be applied to
reimburse the relevant Issuing Lender for the portion of any unreimbursed drawing under a
Letter of Credit to which such unreallocated portion relates and, to the extent the
remaining portion of such unreimbursed drawing shall not be reimbursed by the Borrower in
accordance with Section 2.26(f), the non-Defaulting Lenders will be required pursuant to
Section 2.26(b) to fund participations therein in accordance with clause (x) above.



          (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the Issuing Lender agree in writing in their reasonable discretion that a Lender no
longer falls within the definition of “Defaulting Lender”, the Administrative Agent will so notify
the











 



54



parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Revolving Loans of
the other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit
and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their
Revolving Percentages, whereupon that Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees or commissions accrued or payments made
by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender.



3. REPRESENTATIONS AND WARRANTIES OF BORROWER




          In order to induce the Lenders to enter into this Agreement and to make the Loans and issue
and participate in the Letters of Credit provided for herein, the Borrower makes the following
representations and warranties to the Administrative Agent and the Lenders, all of which shall
survive the execution and delivery of this Agreement and the making of the Loans and issuance of
the Letters of Credit:




          SECTION 3.1. Corporate Existence and Power.




          (a) The Borrower is duly organized and validly existing in good standing under the laws of its
jurisdiction of organization and is in good standing or has applied for authority to operate as a
foreign corporation or other organization in all jurisdictions where the nature of its properties
or business so requires it and where a failure to be in good standing as a foreign corporation or
other organization would reasonably be expected to have Material Adverse Effect. Each of the
Borrower and each Subsidiary Borrower has the corporate power to execute, deliver and perform its
obligations under this Agreement and the other Fundamental Documents and other documents
contemplated hereby and to borrow hereunder.




          (b) The Subsidiaries of the Borrower are duly organized and are validly existing in good
standing under the laws of their respective jurisdictions of organization and are in good standing
or have applied for authority to operate as a foreign corporation or other organization in all
jurisdictions where the nature of their properties or business so requires it and where a failure
to be in good standing as a foreign corporation or other organization would reasonably be expected
to have Material Adverse Effect.




          SECTION 3.2. Corporate Authority, No Violation and Compliance with Law.




          The execution, delivery and performance of this Agreement and the other Fundamental Documents
and the borrowings hereunder (a) have been duly authorized by all necessary corporate action on the
part of the Borrower and each Subsidiary Borrower, (b) will not violate any provision of any
Applicable Law (including any laws related to franchising) applicable to the Borrower or any of its
Subsidiaries or any of their respective properties or assets, (c) will not violate any provision of
the certificate of incorporation or by-laws or other organizational documents of the Borrower or
any of its Subsidiaries, (d) will not violate or be in conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, any material indenture,
bond, note, instrument or any other material agreement to which the Borrower or any of its
Subsidiaries is a party or by which the Borrower or any of its Subsidiaries or any of their
respective properties or assets are bound and (e) will not result in the creation or imposition of
any Lien upon any property or assets of the Borrower or any of its











 



55



Subsidiaries other than pursuant to this Agreement or any other Fundamental Document, which in
the case of clauses (b) and (d), individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.




          SECTION 3.3. Governmental and Other Approval and Consents.




          No action, consent or approval of, or registration or filing with, or any other action by, any
governmental agency, bureau, commission or court is required in connection with the execution,
delivery and performance by the Borrower and each Subsidiary Borrower of this Agreement or the
other Fundamental Documents, except such as have been obtained or made and are in full force and
effect or where the failure to take such action or obtain such consent or approval would not
reasonably be expected to have a Material Adverse Effect.




          SECTION 3.4. Financial Statements of Borrower.




          The audited balance sheet of the Borrower and its Consolidated Subsidiaries as at December 31,
2008 and December 31, 2009, and the related consolidated statements of income and of cash flows for
the fiscal years ended on such date (the “Consolidated Financial Statements”), fairly
present the financial condition of the Borrower and its Consolidated Subsidiaries as of the dates
indicated and the results of operations and cash flows for the periods indicated in conformity with
GAAP.




          SECTION 3.5. No Change.




          Except for Disclosed Matters, since the date of the most recent audited financial statements
referred to in Section 3.4, there has been no development or event that has had or would reasonably
be expected to have a Material Adverse Effect.




          SECTION 3.6. Copyrights, Patents and Other Rights.




          Each of the Borrower and its Subsidiaries (a) owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect and
(b) to their knowledge, the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except, in each case, as would not reasonably be expected to have a
Material Adverse Effect for any such infringements that, individually or in the aggregate, would
not reasonably be expected to have Material Adverse Effect.




          SECTION 3.7. Title to Properties.




          Subject to Section 3.6, each of the Borrower or its Subsidiaries has good title or valid
leasehold interests to each of the properties and assets reflected on the most recent balance sheet
referred to in Section 3.4 (other than properties or assets owned by a Person that is consolidated
with the Borrower or any of its Subsidiaries under GAAP but is not a Subsidiary of the Borrower ),
except for defects in title or interests that would not reasonably be expected to have Material
Adverse Effect, and all such properties and assets are free and clear of Liens, except Permitted
Encumbrances.




          SECTION 3.8. Litigation.




          Except for Disclosed Matters, there are no lawsuits or other proceedings pending (including,
but not limited to, matters relating to Environmental Law and Environmental Liability), or, to the
knowledge of the Borrower, threatened, against or affecting the Borrower or any of its Subsidiaries
or











 



56



any of their respective properties, by or before any Governmental Authority or arbitrator,
which would reasonably be expected to have Material Adverse Effect. Neither the Borrower nor any
of its Subsidiaries is in default with respect to any order, writ, injunction, decree, rule or
regulation of any Governmental Authority, which default would reasonably be expected to have
Material Adverse Effect.




          SECTION 3.9. Federal Reserve Regulations.




          Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any Margin Stock. No part of the proceeds of the Loans will be used, whether immediately,
incidentally or ultimately, for any purpose violative of or inconsistent with any of the provisions
of Regulation U or X of the Board.




          SECTION 3.10. Investment Company Act.




          The Borrower is not, and will not during the term of this Agreement be, an “investment
company” subject to regulation under the Investment Company Act of 1940, as amended.




          SECTION 3.11. Enforceability.




          This Agreement and the other Fundamental Documents when executed by all parties hereto and
thereto will constitute legal, valid and binding obligations (as applicable) of the Borrower and
the other Loan Parties party to such Fundamental Documents (enforceable in accordance with its
terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar
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 3.12. Taxes.




          Each of the Borrower and each of its Subsidiaries has filed or caused to be filed all federal,
state and local Tax returns which are required to be filed, and has paid or has caused to be paid
all Taxes required to have been paid by it, 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 in conformity with GAAP or (b) to the extent that the failure
to do so would not reasonably be expected to have a Material Adverse Effect.




          SECTION 3.13. Compliance with ERISA.




          Except as would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect: (a) no ERISA Event has occurred or is reasonably expected to occur; (b)
the Borrower, each of its Material Subsidiaries and each of its ERISA Affiliates is in compliance
with the provisions of ERISA and the Code applicable to Plans, and the regulations and published
interpretations thereunder applicable to such entity in connection therewith, if any; (c) neither
the Borrower nor any of its Subsidiaries has engaged in a transaction which would result in the
incurrence of liability under Section 4069 of ERISA; and (d) the present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of such Plan, and
the present value of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans.












 



57




          SECTION 3.14. Disclosure.




          As of the Closing Date, neither this Agreement nor any factual information set forth in the
Confidential Information Memorandum (excluding projections, other forward looking information and
information of a general economic or industry nature) dated January 27, 2010, when taken as a whole
contained any untrue statement of a material fact or omitted to state a material fact, under the
circumstances under which it was made, necessary in order to make the statements contained herein
or therein not materially misleading in light of the circumstances under which such statements were
made. At the Closing Date, there is no fact known to the Borrower which has not been disclosed to
the Lenders and which, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. The Borrower has delivered to the Administrative Agent certain
projections relating to the Borrower and its Consolidated Subsidiaries. Such projections are based
on good faith estimates and assumptions believed to be reasonable at the time made,
provided, however, that the Borrower makes no representation or warranty that such
assumptions will prove in the future to be accurate or that the Borrower and its Subsidiaries will
achieve the financial results reflected in such projections (it being understood that such
Projections are not to be viewed as facts and are subject to significant uncertainties and
contingencies, many of which are beyond the Borrower’s control, that no assurance can be given that
any particular Projections will be realized and that actual results may differ and that such
differences may be material).




          SECTION 3.15. Environmental Liabilities.




          Except for the Disclosed Matters and except with respect to any matters, that, individually or
in the aggregate, would not reasonably be expected to have 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 received notice of any claim with respect to any Environmental
Liability or (iii) knows of any circumstances that are reasonably likely to become the basis for
any claim of Environmental Liability against the Borrower or any of its Subsidiaries.




          SECTION 3.16. Material Subsidiaries




          The Material Subsidiaries existing on the Closing Date (calculated as of December 31, 2009)
are listed on Schedule 3.16.




          SECTION 3.17. Anti-Terrorism Laws




          The Borrower is not and, to the knowledge of the Borrower, none of its Affiliates is in
violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive
Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107 56.




          The Borrower is not and, to the knowledge of the Borrower, none of its Affiliates or their
respective brokers or other agents acting or benefiting in any capacity in connection with the
Loans is any of the following:




          (a) a Person or entity that is listed in the annex to, or is otherwise subject to
the provisions of, the Executive Order;












 



58




          (b) a Person or entity owned or controlled by, or acting for or on behalf of, any
Person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order;




          (c) a Person or entity with which any Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;




          (d) a Person or entity that commits, threatens or conspires to commit or supports
“terrorism” as defined in the Executive Order; or




          (e) a Person or entity that is named as a “specially designated national and blocked
person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control at its official website or any replacement website or other replacement official
publication or such list.




          The Borrower is not and, to the knowledge of the Borrower, none of its brokers or other agents
acting in any capacity in connection with the Loans (i) conducts any business or engages in making
or receiving any contribution of funds, goods or services to or for the benefit of any Person
described in clause (b) above, (ii) deals in, or otherwise engages in any transaction relating to,
any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in
or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.



4. CONDITIONS OF LENDING




          SECTION 4.1. Conditions Precedent to Closing.




          The agreement of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction or waiver, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:




          (a) Loan Documents. The Administrative Agent shall have received this Agreement and
any Notes requested in writing at least three Business Days prior to the Closing Date, each
executed and delivered by a duly authorized officer of each of the Loan Parties party thereto.




          (b) Financial Statements. The Lenders shall have received the Consolidated Financial
Statements, which, in the case of the Consolidated Financial Statements for 2008 and 2009, may be
delivered to the Lenders by delivery of the Borrower’s Form 10-K filed with the Securities and
Exchange Commission containing such financial statements.




          (c) Payment of Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), at least three Business Days before the Closing
Date.




          (d) Corporate Documents for the Loan Parties. The Administrative Agent shall have
received a certificate of an authorized officer of each Loan Party dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the certificate of
incorporation and by-laws of such Loan Party as in effect on the date of such certification; (B)
that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors
of such Loan Party authorizing the











 



59



borrowings hereunder, in the case of the Borrower, and the execution, delivery and performance
in accordance with their respective terms of the Fundamental Documents to which such Loan Party is
party to and any other documents required or contemplated hereunder; and (C) as to the incumbency
and specimen signature of each officer of such Loan Party executing the Fundamental Documents to
which such Loan Party is a party to or any other document delivered by it in connection herewith
(such certificate to contain a certification by another officer of such Loan Party as to the
incumbency and signature of the officer signing the certificate referred to in this paragraph (d)).




          (e) Opinions of Counsel. The Administrative Agent shall have received the executed
written opinion, dated the date of the Closing Date and addressed to the Administrative Agent and
the Lenders, of Kirkland & Ellis LLP, counsel to the Borrower, substantially in the form of Exhibit
A.




          (f) Officer’s Certificate. The Administrative Agent shall have received a certificate
of the Borrower’s chief executive officer or chief financial officer certifying, as of the Closing
Date, compliance with the conditions set forth in paragraphs (b) and (c) of Section 4.2.




          (g) Projections. The Lenders shall have received projections through 2013, which may
be delivered to the Lenders by delivery of the Confidential Information Memorandum referred to in
Section 3.14.




          (h) Approvals. All material governmental and third party approvals necessary in
connection with the continuing operations of the Borrower and the financing contemplated hereby
shall have been obtained and be in full force and effect.




          (i) Material Adverse Effect. The Lenders shall be satisfied that (i) there has been no
development or circumstance that has had or could reasonably be expected to have a Material Adverse
Effect since December 31, 2009 and (ii) the Borrower and its subsidiaries are not party to or
subject to any litigation or proceeding which would be likely to have a Material Adverse Effect.




          (j) Existing Credit Agreement. The Existing Credit Agreement shall have been
terminated and all unpaid amounts thereunder (other than unasserted contingent obligations which by
their terms survive termination) shall have been paid in full.




          (k) Patriot Act. The Administrative Agent and the Lenders shall have received
all documentation and other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the Patriot Act,
requested by such Person at least three Business Days prior to the Closing Date.




          SECTION 4.2. Conditions Precedent to Each Extension of Credit.




          The obligation of the Lenders to make each Loan and of any Issuing Lender to issue a Letter of
Credit, including the initial extensions of credit hereunder, is subject to the following
conditions precedent:




          (a) Notice. The Administrative Agent shall have received a notice with respect to
such Borrowing, Letter of Credit as required by this Agreement.




          (b) Representations and Warranties. The representations and warranties set forth in
Section 3 hereof and in the other Fundamental Documents shall be true and correct in all material
respects on and as of the date of each Borrowing or issuance of a Letter of Credit hereunder
(except to the extent that such representations and warranties expressly relate to an earlier date)
with the same effect as if made











 



60



on and as of such date; provided, however, that this condition shall not apply
to a Revolving Credit Borrowing which is solely refinancing outstanding Revolving Credit Loans and
which, after giving effect thereto, has not increased the aggregate amount of outstanding Revolving
Credit Loans.




          (c) No Event of Default. No Event of Default or Default shall have occurred and be
continuing; provided, however, that this condition shall not apply to a Revolving
Credit Borrowing which is solely refinancing outstanding Revolving Credit Loans and which, after
giving effect thereto, has not increased the aggregate amount of outstanding Revolving Credit
Loans.




          (d) Extensions of Credit to a Subsidiary Borrower. The representations and warranties
contained in Section 3.1, 3.2 and 3.3 as to any Subsidiary Borrower to which a Revolving Extension
of Credit is to be made shall be true and correct in all material respects on and as of the date of
such Borrowing or issuance of a Letter of Credit hereunder; provided, however, that
this condition shall not apply to a Revolving Credit Borrowing which is solely refinancing
outstanding Revolving Credit Loans and which, after giving effect thereto, has not increased the
aggregate amount of outstanding Revolving Credit Loans.



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




5. AFFIRMATIVE COVENANTS



          From the date of the initial Loan and for so long as the Commitments shall be in effect or any
amount shall remain outstanding or unpaid under this Agreement or there shall be any outstanding
L/C Exposure, the Borrower agrees that, unless the Required Lenders shall otherwise consent in
writing, it will, and will cause each of its Subsidiaries to:




          SECTION 5.1. Financial Statements, Reports, etc.




          The Borrower will furnish to the Administrative Agent and to each Lender:




          (a) As soon as is practicable, but in any event within 100 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of, and the related consolidated statements of income,
shareholders’ equity and cash flows for such year, and the corresponding figures as at the end of,
and for, the preceding fiscal year, accompanied by an opinion of Deloitte & Touche LLP or such
other independent certified public accountants of recognized standing as shall be retained by the
Borrower and reasonably satisfactory to the Administrative Agent, which report and opinion shall be
prepared in accordance with generally accepted auditing standards relating to reporting and which
report and opinion shall (A) be unqualified as to going concern and scope of audit and shall state
that such financial statements fairly present the financial condition of the Borrower and its
Consolidated Subsidiaries, as at the dates indicated and the results of the operations and cash
flows for the periods indicated and (B) contain no material exceptions or qualifications except for
qualifications relating to accounting changes (with which such independent public accountants
concur) in response to FASB releases or other authoritative pronouncements;




          (b) As soon as is practicable, but in any event within 55 days after the end of each of the
first three fiscal quarters of each fiscal year, the unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, as at the end of, and the related unaudited statements
of income (or changes in financial position) for such quarter and for the period from the beginning
of the then current fiscal year











 



61



to the end of such fiscal quarter and the corresponding figures as at the end of, and for, the
corresponding period in the preceding fiscal year, together with a certificate signed by the chief
financial officer or a vice president responsible for financial administration of the Borrower to
the effect that such financial statements, while not examined by independent public accountants,
fairly present in all material respects the financial condition of the Borrower and its
Consolidated Subsidiaries, as at the end of the fiscal quarter and portion of the fiscal year then
ended and the results of their operations for the quarter and portion of the fiscal year then ended
in conformity with GAAP consistently applied, subject only to year-end audit adjustments and to the
absence of footnote disclosure;




          (c) Together with the delivery of the statements referred to in paragraphs (a) and (b) of this
Section 5.1, a certificate of the Responsible Officer, substantially in the form of Exhibit C
hereto (i) stating whether or not the signer has actual knowledge of any Default or Event of
Default and, if so, specifying each such Default or Event of Default of which the signer has actual
knowledge, the nature thereof and any action which the Borrower has taken, is taking, or proposes
to take with respect to each such condition or event and (ii) demonstrating in reasonable detail
compliance with the provisions of Sections 6.5 and 6.6 hereof;




          (d) With reasonable promptness, copies of such financial statements and reports that the
Borrower may make to, or file with, the SEC and such other information, certificates and data
(including, without limitation, copies of Letters of Credit) with respect to the Borrower and its
Subsidiaries as from time to time may be reasonably requested by the Administrative Agent or any of
the Lenders;




          (e) Promptly upon any Responsible Officer obtaining actual knowledge of the occurrence of any
Default or Event of Default, a certificate of a Responsible Officer specifying the nature and
period of existence of such Default or Event of Default and what action the Borrower has taken, is
taking and proposes to take with respect thereto; and




          (f) Promptly upon any Responsible Officer of the Borrower or any of its Subsidiaries obtaining
actual knowledge of (i) the institution of any action, suit, proceeding, investigation or
arbitration by any Governmental Authority or other Person against or affecting the Borrower or any
of its Subsidiaries or any of their assets, or (ii) any material development in any such action,
suit, proceeding, investigation or arbitration (whether or not previously disclosed to the
Lenders), which, in each case would reasonably be expected to have a Material Adverse Effect, the
Borrower shall promptly give notice thereof to the Lenders and provide such other information as
may be requested by the Administrative Agent or any Lender that is reasonably available to it
(without waiver of any applicable evidentiary privilege) to enable the Lenders to evaluate such
matters;




          (g) Together with each set of financial statements required by paragraph (a) above, a
certificate of the independent certified public accountants rendering the report and opinion
thereon (which certificate may be limited to the extent required by accounting rules or otherwise)
stating that, in connection with their audit, nothing has come to their attention that caused them
to believe that the Borrower failed to comply with the terms, covenants, provisions or conditions
of Sections 5.4, 5.5, 5.6, 6.1, 6.2 and 6.4 through 6.7, inclusive, or if a failure to comply has
come to their attention, specifying the nature and period of existence thereof;




          (h) Information required to be delivered pursuant to paragraphs (a), (b) and (d) shall be
deemed to have been delivered on the date on which the Borrower provides notice to the
Administrative Agent that such information has been posted on the Borrower’s website on the
internet at the website address listed on the signature pages of such notice, at www.sec.gov or at
another website accessible by the Lenders without charge; provided that the Borrower shall
deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b) and
(d) of this Section 5.1 to the Administrative











 



62



Agent or any Lender who requests the Borrower to deliver such paper copies until written
notice to cease delivering paper copies is given by the Administrative Agent or such Lender.




          SECTION 5.2. Corporate Existence; Compliance with Statutes.




          Do or cause to be done all things necessary to preserve, renew and keep in full force and
effect its corporate existence, material rights, licenses, permits and franchises and comply,
except where failure to comply, either individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, with all provisions of Applicable Law, and all
applicable restrictions imposed by, any Governmental Authority, including without limitation, the
Federal Trade Commission’s “Disclosure Requirements and Prohibitions Concerning Franchising and
Business Opportunity Ventures” as amended from time to time (16 C.F.R. §§ 436.1 et
seq.) and all state laws and regulations of similar import; provided,
however, that mergers, dissolutions and liquidations permitted under Section 6.2 shall be
permitted.




          SECTION 5.3. Insurance.




          Maintain with financially sound and reputable insurers insurance in such amounts and against
such risks as are customarily insured against by companies in similar businesses; provided,
however, that (a) workmen’s compensation insurance or similar coverage may be effected with
respect to its operations in any particular state or other jurisdiction through an insurance fund
operated by such state or jurisdiction and (b) such insurance may contain self-insurance retention
and deductible levels consistent with normal industry practices.




          SECTION 5.4. Taxes and Charges.




          Duly pay and discharge, or cause to be paid and discharged, before the same shall become
delinquent, all federal, state or local Taxes, assessments, levies and other governmental charges,
imposed upon the Borrower or any of its Subsidiaries or their respective properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies which if unpaid would reasonably be expected to result in a Material
Adverse Effect; provided, however, that any such Tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be contested in good faith
by appropriate proceedings and if the Borrower shall have set aside on its books reserves (the
presentation of which is segregated to the extent required by GAAP) adequate with respect thereto
if reserves shall be deemed necessary by the Borrower in accordance with GAAP; and
provided, further, that the Borrower will pay all such Taxes, assessments, levies
or other governmental charges forthwith upon the commencement of proceedings to foreclose any
material Lien which may have attached as security therefor (unless the same is fully bonded or
otherwise effectively stayed).




          SECTION 5.5. ERISA Compliance and Reports.




          Furnish to the Administrative Agent: (a) as soon as possible, and in any event within 30 days
after any executive officer (as defined in Regulation C under the Securities Act of 1933) of the
Borrower actually knows that any ERISA Event with respect to any Plan has occurred, a statement of
the chief financial officer of the Borrower, setting forth details as to such ERISA Event and the
action which it proposes to take with respect thereto, together with a copy of the notice of such
ERISA Event, if any, required to be filed with the PBGC by the Borrower or any of its Subsidiaries;
(b) promptly after receipt thereof, a copy of any notice the Borrower or any of its Subsidiaries
may receive from the PBGC relating to the PBGC’s intention to terminate any Plan or to appoint a
trustee to administer any Plan; provided that the Borrower shall not be required to notify
the Administrative Agent of the occurrence of any of the











 



63



events set forth in the preceding clauses (a) and (b) unless such event, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse Effect on the Borrower
and its Subsidiaries taken as a whole; or (c) promptly upon the reasonable request of the
Administrative Agent, copies of each annual and other report filed with the IRS, DOL or PBGC with
respect to any Plan.




          SECTION 5.6. Maintenance of and Access to Books and Records; Examinations.




          Maintain or cause to be maintained at all times true and complete in all material respects
books and records of its financial operations (in accordance with GAAP) and provide the
Administrative Agent and its representatives reasonable access to all such books and records and to
any of their properties or assets during regular business hours and upon advance written notice
(provided that reasonable access to such books and records and to any of the Borrower’s
properties or assets shall be made available to the Lenders if an Event of Default has occurred and
is continuing), in order that the Administrative Agent may make such audits and examinations and
make abstracts from such books, accounts and records (in each case subject to the Borrower or its
Subsidiaries’ obligations under applicable confidentiality provisions) and may discuss the affairs,
finances and accounts with, and be advised as to the same by, officers and, so long as a
representative of the Borrower is present, independent accountants, all as the Administrative Agent
may deem appropriate for the purpose of verifying the various reports delivered pursuant to this
Agreement or for otherwise ascertaining compliance with this Agreement. Notwithstanding Section
10.4, unless any such visit or inspection is conducted after the occurrence and during the
continuance of a Default or an Event of Default, the Borrower shall not be required to pay any
costs or expenses incurred by the Administrative Agent, any Lender or any other Person in
connection with such visit or inspection.




          SECTION 5.7. Maintenance of Properties.




          Keep its properties which are material to its business in good repair, working order and
condition consistent with industry practice, ordinary wear and tear excepted, except where the
failure to do so would not reasonably be expected to have a Material Adverse Effect.




          SECTION 5.8. Changes in Character of Business.




          Cause the Borrower and its Subsidiaries taken as a whole to be primarily engaged in the
vacation ownership, vacation rental and exchange, lodging and franchising and services businesses.




6. NEGATIVE COVENANTS



          From the date of the initial Loan and for so long as the Commitments shall be in effect or any
amount shall remain outstanding or unpaid under this Agreement or there shall be any outstanding
L/C Exposure, unless the Required Lenders shall otherwise consent in writing, the Borrower agrees
that it will not, nor will it permit any of its Subsidiaries to, directly or indirectly:




          SECTION 6.1. Limitation on Indebtedness.




          Incur, assume or suffer to exist any Indebtedness of any Material Subsidiary except:




          (a) Indebtedness in existence on the Closing Date, or required to be incurred pursuant to a
contractual obligation in existence on the Closing Date and any refinancing, extensions, renewals
or modifications thereof, so long as such refinancing, renewals, extensions or modifications (i) do
not result in an increase in the principal amount of the Indebtedness so refinanced, renewed,
extended or modified











 



64



(other than increases to pay fees and expenses incurred in connection therewith), and (ii)
rank pari-passu with the Indebtedness being refinanced;




          (b) Indebtedness (including Capital Leases) incurred in connection with or as a component of
the purchase price of any property of any Material Subsidiary or that was existing on any property
acquired by such Material Subsidiary at the time of acquisition thereof by such Material Subsidiary
and assumed in connection with such acquisition (other than Indebtedness issued in connection with,
or in anticipation of, such acquisitions) or otherwise incurred to finance the acquisition,
construction or improvement of any property (including, without limitation, Indebtedness incurred
to finance the cost of acquisition or construction of such property within 24 months after such
acquisition or the completion of such improvement or construction); and any refinancing, extension
or renewals of such Indebtedness as long as such refinancing, extensions, renewals or modifications
(i) do not result in an increase in the principal amount of the Indebtedness so refinanced,
renewed, extended or modified (other than increases to pay fees and expenses incurred in connection
therewith), (ii) do not result in a change of the obligors in respect of such Indebtedness and
(iii) rank pari-passu with the Indebtedness being refinanced;




          (c) Guaranty Obligations;




          (d) Indebtedness owing by any Material Subsidiary to the Borrower or any other Subsidiary;




          (e) Indebtedness of any Material Subsidiary issued and outstanding prior to the date on which
such Person became a Subsidiary of the Borrower (other than Indebtedness issued in connection with,
or in anticipation of, such Person becoming a Subsidiary of the Borrower); provided that
immediately prior and on a Pro Forma Basis after giving effect to, such Person becoming a
Subsidiary of the Borrower, no Default or Event of Default shall occur or then be continuing and
the aggregate principal amount of such Indebtedness, when added to the aggregate outstanding
principal amount of Indebtedness permitted by paragraphs (f) and (g) below, shall not exceed the
greater of 15% of Consolidated Net Worth and $200,000,000;




          (f) any refinancing, renewal, extension or modification of Indebtedness under paragraph (e)
above so long as such refinancing, renewals, extensions or modifications (i) do not result in an
increase in the principal amount of the Indebtedness so refinanced, renewed, extended or modified
(other than increases to pay fees and expenses incurred in connection therewith), and (ii) rank
pari-passu with the Indebtedness being refinanced;




          (g) other Indebtedness of any Material Subsidiary in an aggregate principal amount which, when
added to the aggregate outstanding principal amount of Indebtedness permitted by paragraphs (e) and
(f) above, does not exceed the greater of 15% of Consolidated Net Worth and $200,000,000;




          (h) Securitization Indebtedness;




          (i) derivatives transactions entered into in the ordinary course of business pursuant to
hedging programs;




          (j) Indebtedness under the Landal Facilities in an aggregate principal amount not to exceed
$250,000,000;




          (k) Indebtedness under the WVRAP Facilities in an aggregate principal amount not to exceed
$200,000,000, provided that the amount of Indebtedness permitted under this Section 6.1(k)
shall











 



65



be reduced in an equal amount by the amount of Securitization Indebtedness incurred by WVRAP
or any of its Subsidiaries;




          (l) Non-Recourse Indebtedness in an aggregate principal amount not to exceed $100,000,000;




          (m) Indebtedness of any Subsidiary issued and outstanding prior to the date on which such
Person became a Material Subsidiary (other than Indebtedness issued in connection with, or in
anticipation of, such Person becoming a Material Subsidiary) and any refinancing, renewal,
extension or modification of such Indebtedness so long as such refinancing, renewals, extensions or
modifications (i) do not result in an increase in the principal amount of the Indebtedness so
refinanced, renewed, extended, or modified (other than increases to pay fees and expenses incurred
in connection therewith) and (ii) rank pari-passu with the Indebtedness being refinanced; and




          (n) Indebtedness of any Loan Party pursuant to any Fundamental Document.




          If the Material Subsidiary’s action or event meets the criteria of more than one of the types of
Indebtedness described in the clauses above, the Borrower in its sole discretion may classify such
action or event in one or more clauses (including in part under one such clause and in part under
another such clause).




          SECTION 6.2. Consolidation, Merger, Sale of Assets.




          (a) Neither the Borrower nor any of its Material Subsidiaries (in one transaction or series of
transactions) will wind up, liquidate or dissolve its affairs, or enter into any transaction of
merger or consolidation, except any merger, consolidation, dissolution or liquidation (i) in which
the Borrower is the surviving entity or if the Borrower is not a party to such transaction then a
Subsidiary is the surviving entity or the successor to the Borrower has unconditionally assumed in
writing all of the payment and performance obligations of the Borrower under this Agreement and the
other Fundamental Documents, (ii) in which the surviving entity becomes a Subsidiary of the
Borrower immediately upon the effectiveness of such merger, consolidation, dissolution or
liquidation, or (iii) involving a Subsidiary in connection with a transaction permitted by Section
6.2(b); provided, however, that immediately prior to and on a Pro Forma Basis after
giving effect to any such transaction described in any of the preceding clauses (i), (ii) and (iii)
no Default or Event of Default has occurred and is continuing.




          (b) The Borrower and its Material Subsidiaries (whether in one transaction or series of
related transactions) will not sell or otherwise dispose of all or substantially all of the assets
of the Borrower and its Subsidiaries, taken as a whole.




          SECTION 6.3. Limitations on Liens.




          Suffer any Lien on the property of the Borrower or any of the Material Subsidiaries, except:




          (a) Liens for taxes, assessments, governmental charges and other similar obligations not yet
due or which are being contested in good faith by appropriate proceedings;




          (b) Liens incidental to the conduct of its business or the ownership of its assets which were
not incurred in connection with the borrowing of money, and which do not in the aggregate
materially detract from the value of its assets or materially impair the use thereof in the
operation of its business;

















 





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          (c) Liens securing Indebtedness permitted by Section 6.1(b) if (i) such Liens secure
Indebtedness in an amount no greater than cost of the acquisition, construction or improvement of
such property so financed (plus fees and expenses incurred in connection therewith); (ii) such
Liens do not extend to or cover any property of any Material Subsidiary other than the property so
acquired, constructed or improved and, in the case of tangible assets, other property which is an
improvement to or is acquired for specific use in connection with such acquired property or which
is property being improved by such acquired property and (iii) such transaction does not otherwise
violate this Agreement;




          (d) Liens upon real and/or personal property, which property was acquired after the Closing
Date (by purchase, construction or otherwise) by the Borrower or any of its Material Subsidiaries,
each of which Liens existed on such property before the time of its acquisition and was not created
in anticipation thereof; provided, however, that no such Lien shall extend to or
cover any property of the Borrower or such Material Subsidiary other than the respective property
so acquired and improvements thereon;




          (e) to the extent not covered by clause (b) above, Liens securing judgments which do not
constitute an Event of Default;




          (f) Liens created under any Fundamental Document;




          (g) Liens existing on the Closing Date and any extensions or renewals thereof;




          (h) Liens securing (or covering property constituting the source of payment for) any
Indebtedness permitted pursuant to clauses (d), (h), (j), (k) or (l) of Section 6.1;




          (i) to the extent not covered by clause (h) above, Liens on equity interests or other
securities issued by a Securitization Entity, securing (or covering property constituting the
source of payment for) Securitization Indebtedness; and




          (j) other Liens securing obligations having an aggregate principal amount not to exceed the
greater of 15% of Consolidated Net Worth and $200,000,000.





If the Borrower’s or the Material Subsidiary’s action or event meets the criteria of more than one
of the types of Liens described in the clauses above, the Borrower in its sole discretion may
classify such action or event in one or more clauses (including in part under one such clause and
in part under another such clause).




          SECTION 6.4. Sale and Leaseback.




          Enter into any arrangement with any Person or Persons, whereby in contemporaneous transactions
the Borrower or any of its Material Subsidiaries sells essentially all of its right, title and
interest in a material asset and the Borrower or any of its Material Subsidiaries acquires or
leases back the right to use such property except that the Borrower and its Subsidiaries may enter
into sale-leaseback transactions relating to assets not in excess of $150,000,000 in the aggregate
on a cumulative basis, and except any arrangements existing on the Closing Date, including but not
limited to sale-leaseback transactions existing under the Landal Facilities, and any renewals,
extensions or modifications thereof, or replacements or substitutions therefor, so long as such
renewals, extensions or modifications are effected on substantially the same terms or on terms
which, in the aggregate, are not more adverse to the Lenders in any material respect.












 



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          SECTION 6.5. Consolidated Leverage Ratio.




          Permit the Consolidated Leverage Ratio for any Rolling Period ending after March 31, 2010 to
be greater than 3.75 to 1.0.




          SECTION 6.6. Consolidated Interest Coverage Ratio.




          Permit the Consolidated Interest Coverage Ratio for any Rolling Period ending after March 31,
2010 to be less than 3.0 to 1.0.




          SECTION 6.7. Accounting Practices.




          Establish a fiscal year ending on any date other than December 31, or modify or change
accounting treatments or reporting practices except as otherwise required or permitted by GAAP or
the SEC.




7. EVENTS OF DEFAULT




          In the case of the happening and during the continuance of any of the following events (herein
called “Events of Default”):




          (a) any representation or warranty made by the Borrower or any Subsidiary Borrower in this
Agreement or any other Fundamental Document or in connection with this Agreement or with the
Borrowings hereunder, or any statement or representation made in any report, financial statement,
certificate or other document furnished by or on behalf of the Borrower or any of its Subsidiaries
to the Administrative Agent or any Lender under or in connection with this Agreement, shall prove
to have been false or misleading in any material respect when made or delivered;




          (b) default shall be made in the payment of any principal of or interest on any Loan, any
reimbursement obligation with respect to Letters of Credit, or of any fees or other amounts payable
by the Borrower or any Subsidiary Borrower hereunder, 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 by
acceleration thereof or otherwise, and (i) in the case of payments of interest, Facility Fees and
fees payable under Section 2.26, such default shall continue unremedied for five days, and (ii) in
the case of payments other than of any principal amount of or interest on any Loan or any
reimbursement obligation with respect to Letters of Credit, Facility Fees and fees payable under
Section 2.26, such default shall continue unremedied for five days after written notice of
non-payment has been received by the Borrower or such Subsidiary Borrower from the Administrative
Agent;




          (c) default shall be made in the due observance or performance of any covenant, condition or
agreement contained in Section 5.1(e) (with respect to notice of Default or Events of Default) or
Section 6 of this Agreement;




          (d) default shall be made by the Borrower in the due observance or performance of any other
covenant, condition or agreement to be observed or performed pursuant to the terms of this
Agreement, or any other Fundamental Document and such default shall continue unremedied for thirty
days after notice has been given to the Borrower by the Administrative Agent of such default;




          (e) (i) default in payment shall be made with respect to any Indebtedness of the Borrower or
any of its Material Subsidiaries (other than Securitization Indebtedness) where the amount or
amounts of such Indebtedness exceeds $50,000,000 in the aggregate; or (ii) default in payment or











 



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performance shall be made with respect to any Indebtedness of the Borrower or any of its
Material Subsidiaries (other than Securitization Indebtedness) where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate, if the effect of such default is to result in
the acceleration of the maturity of such Indebtedness; or (iii) any other circumstance shall arise
(other than the mere passage of time) by reason of which the Borrower or any Material Subsidiary of
the Borrower is required to redeem or repurchase, or offer to holders the opportunity to have
redeemed or repurchased, any such Indebtedness (other than Securitization Indebtedness) where the
amount or amounts of such Indebtedness exceeds $50,000,000 in the aggregate; provided that
clause (iii) shall not apply to secured Indebtedness that becomes due as a result of a voluntary
sale of the property or assets securing such Indebtedness or Indebtedness that is redeemed or
repurchased at the option of the Borrower or any of its Material Subsidiaries; provided,
that clauses (ii) and (iii) shall not apply to any Indebtedness of any Subsidiary issued and
outstanding prior to the date such Subsidiary became a Material Subsidiary of the Borrower (other
than Indebtedness issued in connection with, or in anticipation of, such Subsidiary becoming a
Material Subsidiary of the Borrower) if such default or circumstance arises solely as a result of a
“change of control” provision applicable to such Indebtedness which becomes operative as a result
of the acquisition of such Subsidiary by the Borrower or any of its Subsidiaries; and
provided, further, that in the case of any derivative transaction described in
Section 6.1(i), each reference in this clause (e) to the amount of $50,000,000 shall mean the
amount payable by the Borrower or any of its Material Subsidiaries in connection with a default or
“other circumstance” described in clause (i), (ii) or (iii) and not to the notional amount of such
derivative transaction;




          (f) the Borrower or any of its Material Subsidiaries shall generally not pay its debts as they
become due or shall admit in writing its inability to pay its debts, or shall make a general
assignment for the benefit of creditors; or the Borrower or any of its Material Subsidiaries shall
commence any case, proceeding or other action seeking to have an order for relief entered on its
behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any substantial part of
its property or shall file an answer or other pleading in any such case, proceeding or other action
admitting the material allegations of any petition, complaint or similar pleading filed against it
or consenting to the relief sought therein; or the Borrower or any Material Subsidiary thereof
shall take any action to authorize any of the foregoing;




          (g) any involuntary case, proceeding or other action against the Borrower or any of its
Material Subsidiaries shall be commenced seeking to have an order for relief entered against it as
debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any substantial part of its
property, and such case, proceeding or other action (i) results in the entry of any order for
relief against it or (ii) shall remain undismissed for a period of sixty days;




          (h) the occurrence of a Change in Control;




          (i) final judgment(s) for the payment of money in excess of $50,000,000 (to the extent not
paid or covered by insurance) shall be rendered against the Borrower or any of its Material
Subsidiaries which within thirty days from the entry of such judgment shall not have been
discharged or stayed pending appeal or which shall not have been discharged within thirty days from
the entry of a final order of affirmance on appeal; or












 



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          (j) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred (with respect to which the Borrower has a liability which has not yet been
satisfied), would result in a Material Adverse Effect;



then, in every such event and at any time thereafter during the continuance of such event, the
Administrative Agent may or shall, if directed by the Required Lenders, take either or both of the
following actions, at the same or different times: terminate forthwith the Commitments and/or
declare the principal of and the interest on the Loans and all other amounts payable hereunder or
thereunder to be forthwith due and payable, whereupon the same shall become and be forthwith due
and payable, without presentment, demand, protest, notice of acceleration, notice of intent to
accelerate or other notice of any kind, all of which are hereby expressly waived, anything in this
Agreement to the contrary notwithstanding. If an Event of Default specified in paragraphs (f) or
(g) above shall have occurred, the principal of and interest on the Loans and all other amounts
payable hereunder or thereunder shall thereupon and concurrently become due and payable without
presentment, demand, protest, notice of acceleration, notice of intent to accelerate or other
notice of any kind, all of which are hereby expressly waived, anything in this Agreement to the
contrary notwithstanding and the Commitments of the Lenders shall thereupon forthwith terminate.
Upon acceleration of payment of the Loans, all obligations under this Agreement denominated in
currencies other than Dollars shall, at the option of the Administrative Agent, be converted to
Dollars in accordance with this Agreement.




8. THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER




          SECTION 8.1. Administration by Administrative Agent.




          The general administration of the Fundamental Documents and any other documents contemplated
by this Agreement shall be by the Administrative Agent or its designees. Each of the Lenders
hereby irrevocably authorizes the Administrative Agent, at its discretion, to take or refrain from
taking such actions as agent on its behalf and to exercise or refrain from exercising such powers
under the Fundamental Documents and any other documents contemplated by this Agreement as are
delegated by the terms hereof or thereof, as appropriates together with all powers reasonably
incidental thereto. The Administrative Agent shall have no duties or responsibilities except as
set forth in the Fundamental 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 or Event of 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 hereby 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
10.9), and (c) except as expressly set forth herein, 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 or Affiliates 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 10.9) 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, any Subsidiary 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 this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this











 



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Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Section 4 or elsewhere herein. Any Lender which is not the Administrative
Agent (regardless of whether such Lender bears the title of any other Agent or any similar title,
as indicated on the signature pages hereto) for the credit facility hereunder shall not have any
duties or responsibilities except as a Lender hereunder.




          SECTION 8.2. Advances and Payments.




          (a) On the date of each Loan, the Administrative Agent shall be authorized (but not obligated)
to advance, for the account of each of the Lenders, the amount of the Loan to be made by it in
accordance with this Agreement. Each of the Lenders hereby authorizes and requests the
Administrative Agent to advance for its account, pursuant to the terms hereof, the amount of the
Loan to be made by it, unless with respect to any Lender, such Lender has theretofore specifically
notified the Administrative Agent that such Lender does not intend to fund that particular Loan.
Each of the Lenders agrees forthwith to reimburse the Administrative Agent in immediately available
funds for the amount so advanced on its behalf by the Administrative Agent pursuant to the
immediately preceding sentence. If any such reimbursement is not made in immediately available
funds on the same day on which the Administrative Agent shall have made any such amount available
on behalf of any Lender in accordance with this Section 8.2, such Lender shall pay interest to the
Administrative Agent at a rate per annum equal to the Administrative Agent’s cost of obtaining
overnight funds in the New York Federal Funds Market. Notwithstanding the preceding sentence, if
such reimbursement is not made by the second Business Day following the day on which the
Administrative Agent shall have made any such amount available on behalf of any Lender or such
Lender has indicated that it does not intend to reimburse the Administrative Agent, the Borrower or
the relevant Subsidiary Borrower shall immediately pay such unreimbursed advance amount (plus any
accrued, but unpaid interest at the rate applicable to ABR Loans) to the Administrative Agent.




          (b) Any amounts received by the Administrative Agent in connection with this Agreement the
application of which is not otherwise provided for shall be applied, in accordance with each of the
Lenders’ pro rata interest therein where applicable, first, to pay amounts payable to the
Administrative Agent and the Issuing Lenders, second, to pay accrued but unpaid Facility Fees,
third, to pay accrued but unpaid interest on the Loans and letter of credit commissions, fourth, to
pay the principal balance outstanding on the Loans and unpaid reimbursement obligations in respect
of Letters of Credit and fifth to pay other amount payable to the Leaders. All amounts to be paid
to any of the Lenders by the Administrative Agent shall be credited to the Lenders, promptly after
collection by the Administrative Agent, in immediately available funds either by wire transfer or
deposit in such Lender’s correspondent account with the Administrative Agent, or as such Lender and
the Administrative Agent shall from time to time agree.




          SECTION 8.3. Sharing of Setoffs and Cash Collateral.




          Each of the Lenders agrees that if it shall, through the operation of Sections 2.21, 2.26(g)
or 2.26(h) hereof or the exercise of a right of bank’s lien, setoff or counterclaim against the
Borrower or any Subsidiary Borrower, including, but not limited to, a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising from, or in lieu
of, such secured claim and received by such Lender under any applicable bankruptcy, insolvency or
other similar law, or otherwise, obtain payment in respect of its Revolving Credit Loans, Revolving
L/C Exposure or Swingline Participation Amounts as a result of which the unpaid portion of its
Revolving Credit Loans, Revolving L/C Exposure or Swingline Participation Amounts, as applicable,
is proportionately less than the unpaid portion of any of the other Lenders (a) it shall promptly
purchase at par (and shall be deemed to have thereupon purchased) from such other Lenders a
participation in the Revolving Credit Loans, Revolving











 



71



L/C Exposure or Swingline Participation Amounts, as applicable, of such other Lenders, so that
the aggregate unpaid principal amount of each of the Lenders’ Revolving Credit Loans, Revolving L/C
Exposure and Swingline Participation Amounts and its participation in Revolving Credit Loans,
Revolving L/C Exposure and Swingline Participation Amounts of the other Lenders shall be in the
same proportion to the aggregate unpaid principal amount of all Revolving Credit Loans, Revolving
L/C Exposure and Swingline Participation Amounts then outstanding as the principal amount of its
Revolving Credit Loans, Revolving L/C Exposure and Swingline Participation Amounts prior to the
obtaining of such payment was to the principal amount of all Revolving Credit Loans, Revolving L/C
Exposure and Swingline Participation Amounts outstanding prior to the obtaining of such payment and
(b) such other adjustments shall be made from time to time as shall be equitable to ensure that the
Lenders share such payment pro rata.




          SECTION 8.4. Notice to the Lenders.




          Upon receipt by the Administrative Agent from the Borrower or any Subsidiary Borrower of any
communication calling for an action on the part of the Lenders, or upon notice to the
Administrative Agent of any Event of Default, the Administrative Agent will in turn immediately
inform the other Lenders (including any Issuing Lender) in writing (which shall include telegraphic
communications) of the nature of such communication or of the Event of Default, as the case may be.




          SECTION 8.5. Liability of Administrative Agent and each Issuing Lender.




          (a) The Administrative Agent or any Issuing Lender, when acting on behalf of the Lenders may
execute any of its duties under this Agreement by or through its officers, agents, or employees and
neither the Administrative Agent, the Issuing Lenders nor their respective directors, officers,
agents, or employees shall be liable to the Lenders or any of them for any action taken or omitted
to be taken in good faith, or be responsible to the Lenders or to any of them for the consequences
of any oversight or error of judgment, or for any loss, unless the same shall happen through its
gross negligence or willful misconduct. The Administrative Agent, the Issuing Lenders and their
respective directors, officers, agents, and employees shall in no event be liable to the Lenders or
to any of them for any action taken or omitted to be taken by it pursuant to instructions received
by it from the Required Lenders or in reliance upon the advice of counsel selected by it. Without
limiting the foregoing, neither the Administrative Agent, the Issuing Lenders nor any of their
respective directors, officers, employees, or agents shall be responsible to any of the Lenders for
the due execution, validity, genuineness, effectiveness, sufficiency, or enforceability of, or for
any statement, warranty, or representation in, or for the perfection of any security interest
contemplated by, this Agreement or any related agreement, document or order, or for the designation
or failure to designate this transaction as a “Highly Leveraged Transaction” for regulatory
purposes, or shall be required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower or any Subsidiary Borrower of any of the terms, conditions, covenants,
or agreements of this Agreement or any related agreement or document.




          (b) Neither the Administrative Agent, the Issuing Lenders, nor any of their respective
directors, officers, employees, or agents shall have any responsibility to the Borrower or any
Subsidiary Borrower on account of the failure or delay in performance or breach by any of the
Lenders or the Borrower or any Subsidiary Borrower of any of their respective obligations under
this Agreement or any related agreement or document or in connection herewith or therewith.




          (c) The Administrative Agent, and the Issuing Lenders, in such capacities hereunder, shall be
entitled to rely on any communication, instrument, or document reasonably believed by it to be
genuine or correct and to have been signed or sent by a Person or Persons believed by it to be the
proper











 



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Person or Persons, and it shall be entitled to rely on advice of legal counsel, independent
public accountants, and other professional advisers and experts selected by it.




          SECTION 8.6. Reimbursement and Indemnification.




          Each of the Lenders severally and not jointly agrees (to the extent not reimbursed or
otherwise paid by the Borrower or any Subsidiary Borrower (pursuant to Section 10.5 hereof)) (i) to
reimburse the Administrative Agent, in the amount of its Aggregate Exposure Percentage, for any
expenses and fees incurred for the benefit of the Lenders under the Fundamental Documents,
including, without limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, and any other expense incurred in connection with the
administration or enforcement thereof; (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees, or agents, on demand, in the amount of its Aggregate
Exposure Percentage, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against it or any of them in any way
relating to or arising out of the Fundamental Documents or any action taken or omitted by it or any
of them under the Fundamental Documents to the extent not reimbursed by the Borrower or one of its
Subsidiaries (including any Subsidiary Borrower) (except such as shall result from the gross
negligence or willful misconduct of the Person seeking indemnification); and (iii) to indemnify and
hold harmless the Issuing Lenders and any of their respective directors, officers, employees, or
agents or demand in the amount of its proportionate share from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs expenses or disbursements
of any kind or nature whatever which may be imposed or incurred by or asserted against it relating
to or arising out of the issuance of any Letters of Credit not reimbursed by the Borrower or one of
its Subsidiaries (including any Subsidiary Borrower) (except such as shall result from the gross
negligence or willful misconduct of the Person seeking indemnification).




          SECTION 8.7. Rights of Administrative Agent.




          It is understood and agreed that Bank of America shall have the same rights and powers
hereunder (including the right to give such instructions) as the other Lenders and may exercise
such rights and powers, as well as its rights and powers under other agreements and instruments to
which it is or may be party, and engage in other transactions with the Borrower or any Subsidiary
(including any Subsidiary Borrower) or other Affiliate thereof as though it were not the
Administrative Agent on behalf of the Lenders under this Agreement.




          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; provided
that no such delegation shall limit or reduce in any way the Administrative Agent’s duties and
obligations to the Borrower or any Subsidiary Borrower under this Agreement. The Administrative
Agent and any such sub-agent, and any Affiliate of the Administrative Agent or any such sub-agent,
may perform any and all its duties and exercise its rights and powers through their respective
directors, officers, employees, agents and advisors. The exculpatory provisions of Section 8.5
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.




          SECTION 8.8. Independent Investigation by Lenders.




          Each of the Lenders acknowledges that it has decided to enter into this Agreement and to make
the Loans and issue and participate in the Letters of Credit hereunder, and will continue to make











 



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such decisions, based on its own analysis of the transactions contemplated hereby, based on
such documents and other information as it has deemed appropriate and on the creditworthiness of
the Borrower and agrees that neither the Administrative Agent nor any Issuing Lender shall bear
responsibility therefor.




          SECTION 8.9. Notice of Transfer.




          The Administrative Agent and the Issuing Lenders may deem and treat any Lender which is a
party to this Agreement as the owners of such Lender’s respective portions of the Loans and Letter
of Credit reimbursement rights for all purposes, unless and until a written notice of the
assignment or transfer thereof executed by any such Lender shall have been received by the
Administrative Agent and become effective pursuant to Section 10.3.




          SECTION 8.10. Successor Administrative Agent.




          The Administrative Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrower. Upon any such resignation, the Borrower (with the consent of the
Required Lenders, which shall not be unreasonably withheld or delayed) shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Borrower and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent’s giving of notice of resignation, the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent, which with the consent of
the Borrower, which will not be unreasonably withheld, shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon 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 under this Agreement. After any retiring Administrative
Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 8 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.




          SECTION 8.11. Resignation of an Issuing Lender.




          Any Issuing Lender may resign at any time by giving written notice thereof to the Lenders and
the Borrower. Upon any such resignation, such Issuing Lender shall be discharged from any duties
and obligations under this Agreement in its capacity as an Issuing Lender with regard to Letters of
Credit not yet issued. After any retiring Issuing Lender’s resignation hereunder as an Issuing
Lender, the provisions of this Agreement shall continue to inure to its benefit as to any
outstanding Letters of Credit or otherwise with regard to outstanding L/C Exposure and any actions
taken or omitted to be taken by it while it was an Issuing Lender under this Agreement.




          SECTION 8.12. Agents Generally.




          Except as expressly set forth herein, no Agent shall have any duties or responsibilities
hereunder in its capacity as such; and shall incur no liability, under this Agreement and the other
Fundamental Documents.












 



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9. GUARANTY OF SUBSIDIARY BORROWER OBLIGATIONS




          SECTION 9.1. Guaranty.




          (a) The Borrower hereby unconditionally and irrevocably guaranties to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by any Subsidiary Borrower
when due (whether at the stated maturity, by acceleration or otherwise) of the Subsidiary Borrower
Obligations.




          (b) The Borrower further agrees to pay any and all expenses (including, without limitation,
all fees and disbursements of counsel) which may be paid or incurred by the Administrative Agent,
any Issuing Lender or any Lender in enforcing, or obtaining advice of counsel in respect of, any
rights with respect to, or collecting, any or all of the Subsidiary Borrower Obligations and/or
enforcing any rights with respect to, or collecting against, any Subsidiary Borrower under this
Guaranty; provided, however, that the Borrower shall not be liable for the fees and
expenses of more than one separate firm for the Lenders or any Issuing Lender (unless there shall
exist an actual conflict of interest among such Persons, and in such case, not more than two
separate firms) in connection with any one such action or any separate, but substantially similar
or related actions in the same jurisdiction, nor shall the Borrower be liable for any settlement or
proceeding effected without the Borrower’s written consent. This Guaranty shall remain in full
force and effect until the Subsidiary Borrower Obligations are paid in full and the Commitments are
terminated.




          (c) No payment or payments made by any Subsidiary Borrower or any other Person or received or
collected by the Administrative Agent or any Lender from any Subsidiary Borrower or any other
Person by virtue of any action or proceeding or any set-off or appropriation or application, at any
time or from time to time, in reduction of or in payment of the Subsidiary Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower
hereunder which shall, notwithstanding any such payment or payments (other than payments made by
the Borrower in respect of the Subsidiary Borrower Obligations or payments received or collected
from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the
Subsidiary Borrower Obligations until the Subsidiary Borrower Obligations are paid in full and the
Commitments are terminated.




          (d) The Borrower agrees that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any Lender on account of its liability hereunder, it will
notify the Administrative Agent and such Lender in writing that such payment is made under this
Guaranty for such purpose.




          SECTION 9.2. No Subrogation.




          Notwithstanding any payment or payments made by the Borrower hereunder, or any set-off or
application of funds of the Borrower by the Administrative Agent or any Lender, the Borrower shall
not be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender
against any Subsidiary Borrower or against any collateral security or Guaranty or right of offset
held by the Administrative Agent or any Lender for the payment of the Subsidiary Borrower
Obligations, nor shall the Borrower seek or be entitled to seek any contribution or reimbursement
from any Subsidiary Borrower in respect of payments made by the Borrower hereunder, until all
amounts owing to the Administrative Agent and the Lenders by any Subsidiary Borrower on account of
the Subsidiary Borrower Obligations are paid in full and the Commitments are terminated. If any
amount shall be paid to the Borrower on account of such subrogation rights at any time when all of
the Subsidiary Borrower Obligations shall not have been paid in full, such amount shall be held by
the Borrower in trust for the











 



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Administrative Agent and the Lenders, segregated from other funds of the Borrower, and shall,
forthwith upon receipt by the Borrower, be turned over to the Administrative Agent in the exact
form received by the Borrower (duly indorsed by the Borrower to the Administrative Agent, if
required), to be applied against the Subsidiary Borrower Obligations, whether matured or unmatured,
in such order as the Administrative Agent may determine.




          SECTION 9.3. Amendments, etc. with respect to the Obligations; Waiver of Rights.




          The Borrower shall remain obligated hereunder notwithstanding that, without any reservation of
rights against the Borrower, and without notice to or further assent by the Borrower, any demand
for payment of any of the Subsidiary Borrower Obligations made by the Administrative Agent or any
Lender may be rescinded by the Administrative Agent or such Lender, and any of the Subsidiary
Borrower Obligations continued, and the Subsidiary Borrower Obligations, or the liability of any
other party upon or for any part thereof, or any collateral security or guaranty therefor or right
of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the requisite Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guaranty or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Subsidiary Borrower Obligations may be
sold, exchanged, waived, surrendered or released. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as
security for the Subsidiary Borrower Obligations or for the Guaranty under this Section 9 or any
property subject thereto. When making any demand hereunder against the Borrower, the
Administrative Agent or any Lender may, but shall be under no obligation to, make a similar demand
on any Subsidiary Borrower, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from any Subsidiary Borrower or any release of any
Subsidiary Borrower shall not relieve the Borrower of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of
the Administrative Agent or any Lender against the Borrower. For the purposes hereof “demand”
shall include the commencement and continuance of any legal proceedings.




          SECTION 9.4. Guaranty Absolute and Unconditional.




          The Borrower waives any and all notice of the creation, renewal, extension or accrual of any
of the Subsidiary Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Guaranty or acceptance of the Guaranty under this Section 9, the
Subsidiary Borrower Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the
Guaranty under this Section 9 and all dealings between any Subsidiary Borrower and the Borrower, on
the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the Guaranty under this
Section 9. The Borrower waives diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon any Subsidiary Borrower or the Borrower with respect to the
Subsidiary Borrower Obligations. The Guaranty under this Section 9 shall be construed as a
continuing, absolute and unconditional guaranty of payment without regard to (a) the validity or
enforceability of this Agreement, any of the Subsidiary Borrower Obligations or any other
collateral security therefor or guaranty or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any time be available to
or be asserted by any Subsidiary Borrower against the Administrative Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of such Subsidiary
Borrower or the











 



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Borrower) which constitutes, or might be construed to constitute, an equitable or legal
discharge of Subsidiary Borrower for its Subsidiary Borrower Obligations, or of the Borrower under
the guaranty under this Section 9, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against the Borrower, the Administrative Agent and any Lender may,
but shall be under no obligation to, pursue such rights and remedies as it may have against any
Subsidiary Borrower or any other Person or against any collateral security or guaranty for the
Subsidiary Borrower Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to collect any
payments from any Subsidiary Borrower or any such other Person or to realize upon any such
collateral security or guaranty or to exercise any such right of offset, or any release of
Subsidiary Borrower or any such other Person or of any such collateral security, guaranty or right
of offset, shall not relieve the Borrower of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against such Subsidiary Borrower. The Guaranty under this
Section 9 shall remain in full force and effect and be binding in accordance with and to the extent
of its terms upon the Borrower and its successors and assigns thereof, and shall inure to the
benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees,
transferees and assigns, until all the Subsidiary Borrower Obligations and the obligations of the
Borrower under the Guaranty under this Section 9 shall have been satisfied by payment in full and
the Commitments shall be terminated, notwithstanding that from time to time during the term of this
Agreement any Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.




          SECTION 9.5. Reinstatement.




          The Guaranty under this Section 9 shall continue to be effective, or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Subsidiary Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Subsidiary Borrower or any substantial part
of its property, or otherwise, all as though such payments had not been made.




10. MISCELLANEOUS




          SECTION 10.1. Notices.




          (a) Notices and other communications provided for herein shall be in writing and shall be
delivered or mailed (or in the case of telegraphic communication, if by telegram, delivered to the
telegraph company and, if by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sending party hereto, delivered by such equipment) addressed as follows:





          (i) if to the Administrative Agent with regards to advances, payments or competitive
bids, to it at Bank of America, N.A., 901 Main Street, 14th Floor, Dallas, TX
75202, Attention of Nora Taylor (Telephone No. (214)-209-0592; Facsimile No.
(214)-290-9673, with a copy to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New
York, NY 10017, Attention of James T. Knight (Facsimile No. (212)-455-2502);




          (ii) if to the Administrative Agent with regards to financials and other notices, to
it at Bank of America, N.A., 901 Main Street, 14th Floor, Dallas, TX 75202, Attention of
Lesa Butler (Telephone No. (214)-209-1506; Facsimile No. (214)-209-0085, with a copy to
Bank of America, N.A., 901 Main Street, 14th Floor, Dallas, TX 75202, Attention of Henry
Penell (Telephone No. (214)-209-1226; Facsimile No. (214)-290-9448 and with a copy









 



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to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017,
Attention of James T. Knight (Facsimile No. (212)-455-2502);




          (iii) if to the Borrower, to it at 22 Sylvan Way, Parsippany, NJ 07054, Attention of
Corporate Secretary (Facsimile No. 973-496-1127) and Treasurer (Facsimile No.
973-496-1192), with a copy to Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY
10022, Attention of Jason Kanner (Facsimile No. 212-446-4900);




          (iv) if to a Subsidiary Borrower, to it c/o the Borrower at 22 Sylvan Way,
Parsippany, NJ 07054, Attention of Corporate Secretary (Facsimile No. 973-496-1127) and
Treasurer (Facsimile No. 973-496-1192), with a copy to Kirkland & Ellis LLP, 601 Lexington
Avenue, New York, NY 10022, Attention of Jason Kanner (Facsimile No. 212-446-4900);




          (v) if to a Lender, to it at its address notified to the Administrative Agent (or set
forth in its Assignment and Acceptance or other agreement pursuant to which it became a
Lender hereunder); and




          (vi) if to Bank of America, N.A., in its capacity as Issuing Lender, to it at Bank of
America, N.A., 901 Main Street, 64th Floor, Dallas, TX 75202, Attention of Dail
Mengelkoch (Telephone No. (214)-209-9049; Facsimile No. (214)-672-8719, with a copy to
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017, Attention of
James T. Knight (Facsimile No. (212)-455-2502);




          (vii) if to the Administrative Agent in its capacity as a Swingline Lender, to it at
Bank of America, N.A., 901 Main Street, 14th Floor, Dallas, TX 75202, Attention
of Nora Taylor (Telephone No. (214)-209-0592; Facsimile No. (214)-290-9673, with a copy to
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017, Attention of
James T. Knight (Facsimile No. (212)-455-2502);




          (viii) or if to any other Issuing Lender, at the address for notices as such Issuing
Lender provides in accordance with this Section 10.1;




or such other address as such party may from time to time designate by giving written notice
to the other parties hereunder.



          (b) Any party hereto may change its address or facsimile number and other communications
hereunder 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.




          (c) Notices and other communication 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 Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent,
the Borrower and any Subsidiary 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.












 



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          SECTION 10.2. Survival of Agreement, Representations and Warranties, etc.




          All warranties, representations and covenants made by the Borrower or any Subsidiary Borrower
herein or in any certificate or other instrument delivered by it or on its behalf in connection
with this Agreement shall be considered to have been relied upon by the Administrative Agent and
the Lenders and shall survive the making of the Loans herein contemplated regardless of any
investigation made by the Administrative Agent or the Lenders or on their behalf and shall continue
in full force and effect so long as any amount due or to become due hereunder is outstanding and
unpaid and so long as the Commitments have not been terminated. All statements in any such
certificate or other instrument shall constitute representations and warranties by the Borrower or
such Subsidiary Borrower hereunder.




          SECTION 10.3. Successors and Assigns; Syndications; Loan Sales; Participations.




          (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party (provided, however,
that neither Borrower nor any Subsidiary Borrower may assign its rights hereunder without the prior
written consent of all the Lenders), and all covenants, promises and agreements by, or on behalf
of, the Borrower or any Subsidiary Borrower which are contained in this Agreement shall inure to
the benefit of the successors and assigns of the Lenders.




          (b) Each of the Lenders may assign to an Eligible Assignee all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation, all or a portion of its
Commitment and the same portion of the Revolving Credit Loans at the time owing to it and its
Revolving L/C Exposure); provided, however, that (1) each assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender’s rights and obligations in
respect of the Revolving Loans, L/C Exposure and the Revolving Commitment which are the subject of
such assignment, (2) the amount of the Revolving Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Lender) shall be in a minimum principal amount of $5,000,000 (or, if
less, the remaining portion of the assigning Lender’s rights and obligations under this Agreement)
unless otherwise agreed by the Borrower and the Administrative Agent, (3) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording
in the Register (as defined below), an Assignment and Acceptance, together with a processing and
recordation fee of $3,500 and (4) no Lender shall assign or sell participations of all or a portion
of its interest in a Loan to any Person who is (A) listed on the Specially Designated Nationals and
Blocked Persons List (the “SDN List”) maintained by the U.S. Department of Treasury Office of
Foreign Assets Control (“OFAC”) and/or on any other similar list maintained by the OFAC pursuant
to any authorizing statute, Executive Order or regulation (collectively, “OFAC Laws and
Regulations”); or (B) included within the term “designated national” as defined in the Cuban Assets
Control Regulations, 31 C.F.R. Part 515. Upon such execution, delivery, acceptance and recording,
and from and after the effective date specified in each Assignment and Acceptance, which effective
date shall be not earlier than five Business Days (or such shorter period approved by the
Administrative Agent) after the date of acceptance and recording by the Administrative Agent, (x)
the assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of the assigning Lender’s rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto).




          (c) Notwithstanding the other provisions of this Section 10.3, each Lender may at any time
make an assignment of its interests, rights and obligations under this Agreement to (i) any
Affiliate











 



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of such Lender or (ii) any other Lender hereunder without the consent of the Borrower
provided that it meets the registration requirements in Section 10.3(b)(4).




          (d) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender
makes no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in, or in connection with, this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the Fundamental Documents
or any other instrument or document furnished pursuant hereto or thereto; (ii) such Lender assignor
makes no representation or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower or any Subsidiary
Borrower of any of its obligations under the Fundamental Documents; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or if none of such financial
statements shall have then been delivered, then copies of the financial statements referred to in
Section 3.4 hereof) and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the assigning Lender, the Administrative
Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under the Fundamental Documents as are delegated
to the Administrative Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will be bound by the provisions of this
Agreement and will perform in accordance with its terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.




          (e) The Administrative Agent, on behalf of the Borrower, shall maintain at its address at
which notices are to be given to it pursuant to Section 10.1, a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and addresses of the
Lenders and the Commitments of, and the principal and interest amounts of the Loans owing to, each
Lender from time to time (the “Register”). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, any Subsidiary Borrower, the
Administrative Agent, the Issuing Lenders and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof
for all purposes of this Agreement and the other Fundamental Documents, notwithstanding any notice
to the contrary. Any assignment shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior notice.




          (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee and the processing and recordation fee, the Administrative Agent (subject to the right, if
any, of the Borrower to require its consent thereto) shall, if such Assignment and Acceptance has
been completed and is substantially in the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt
written notice thereof to the Borrower.




          (g) Each of the Lenders may, without the consent of the Borrower, the Administrative Agent or
any Issuing Lender, sell participations to an Eligible Assignee (a “Participant”) in all or
a portion of its rights and obligations under this Agreement (including, without limitation, all or
a portion











 



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of its Commitment and the Loans owing to it); provided, however, that (i) any
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Participant shall
not be granted any voting rights under this Agreement, except with respect to matters requiring the
consent of each of the Lenders hereunder, (iii) any such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iv) the participating banks or
other entities shall be entitled to the cost protection provisions of Sections 2.16, 2.17, 2.19,
2.23 and 2.26 hereof (and subject to the limitations and obligations thereof) but a Participant
shall not be entitled to receive pursuant to such provisions an amount larger than its share of the
amount to which the Lender granting such participation would have been entitled to receive;
provided that a Participant shall not be entitled to the benefits of Section 2.23 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 2.23(e) as though it were a Lender, and (v)
the Borrower, the Administrative Agent 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. Each Lender that sells a participation, acting solely for this purpose as an agent of
the Borrower, shall maintain a register in accordance with its customary practices in which it
enters the name and address of each Participant and the principal amounts (and stated interest) of
each Participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”). The entries in the Participant Register shall be conclusive, and
such Lender, the Administrative Agent, the Borrower and any Subsidiary Borrower shall treat each
Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner
of such participation for purposes of this Agreement, notwithstanding notice to the contrary;
provided, however, that no Lender shall have any obligation to disclose any portion of or
entry made in its Participant Registry without its prior written consent.




          (h) The Lenders may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 10.3, disclose to the assignee or Participant or proposed
assignee or Participant, any information, including confidential information, relating to the
Borrower furnished to the Administrative Agent by or on behalf of the Borrower; provided
that prior to any such disclosure, each such assignee or Participant or proposed assignee or
Participant agrees in writing to be bound by the confidentiality provisions of Section 10.15.




          (i) Each Lender hereby represents that it is a commercial lender or financial institution
which makes loans in the ordinary course of its business and that it will make the Loans hereunder
for its own account in the ordinary course of such business; provided, however,
that, subject to preceding clauses (a) through (h), the disposition of the Indebtedness held by
that Lender shall at all times be within its exclusive control.




          (j) Any Lender may at any time and from time to time pledge, or otherwise grant a security
interest in, all or a portion of its rights under this Agreement, including any such pledge or
grant to any Federal Reserve Bank, and, with respect to any Lender which is a fund, to the fund’s
trustee in support of its obligations to such trustee, and this Section shall not apply to any such
pledge or grant; provided that no such pledge or grant shall release a Lender from any of
its obligations hereunder or substitute any such assignee for such Lender as a party hereto. The
Borrower and any relevant Subsidiary Borrower shall, upon receipt of a written request from any
Lender, issue a Note to facilitate such transactions.




          (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower or any Subsidiary Borrower all or any part of any Revolving
Credit Loan that such Granting Lender would otherwise be obligated to make to the Borrower or such
Subsidiary Borrower pursuant to Section 2.1 or 2.8, provided that (i) nothing herein shall
constitute a commitment to make any











 



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Revolving Credit Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Revolving Credit Loan or fund any other
obligation required to be funded by it hereunder, the Granting Lender shall be obligated to make
such Revolving Credit Loan or fund such obligation pursuant to the terms hereof. The making of a
Revolving Credit Loan by an SPC hereunder shall satisfy the obligation of the Granting Lenders to
make Revolving Credit Loans to the same extent, and as if, such Loan were made by the Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any payment under this
Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the
related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto
hereby agrees that, prior to the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or similar proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.3 any
SPC may (i) with notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor, assign all or a portion of its
interests in any Revolving Credit Loan to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of such SPC to fund the
Revolving Credit Loans made by SPC or to support the securities (if any) issued by such SPC to fund
such Revolving Credit Loans and (ii) disclose on a confidential basis any non-public information
relating to its Revolving Credit Loans to any rating agency, commercial paper dealer or provider of
a surety, guarantee or credit or liquidity enhancement to such SPC.




          (l) None of the Borrower or any of its Subsidiaries or controlled Affiliates shall be entitled
to (i) vote as a Lender under any matter related to this Agreement or the other Fundamental
Documents (provided that any principal, interest and fees in respect of any Incremental
Term Loan owed to any such Person may not be reduced and any scheduled payment date therefor may
not be extended, nor may this proviso be amended or otherwise modified, without the consent of such
Person) or (ii) in their capacities as Lender, attend Lender meetings or conference calls or
receive information distributed to Lenders.




          SECTION 10.4. Expenses.




          Whether or not the transactions hereby contemplated shall be consummated, the Borrower agrees
to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent
and the Syndication Agent in connection with the syndication, preparation, execution, delivery and
administration of this Agreement (and any actual or proposed amendment, modification or waiver of
the Fundamental Documents), the making of the Loans and issuance and administration of the Letters
of Credit, the reasonable and documented fees and disbursements of Simpson Thacher & Bartlett LLP,
counsel to the Administrative Agent, as well as all reasonable and documented out-of-pocket
expenses incurred by the Lenders in connection with any restructuring or workout of this Agreement
or the Letters of Credit or in connection with the enforcement or protection of the rights of the
Lenders in connection with this Agreement or the Letters of Credit or any other Fundamental
Document, and with respect to any action which may be instituted by any Person against any Lender
or any Issuing Lender in respect of the foregoing, or as a result of any transaction, action or
nonaction arising from the foregoing, including but not limited to the reasonable and documented
fees and disbursements of any counsel for the Lenders or any Issuing Lender, provided,
however, that the Borrower shall not be liable for the fees and expenses of more than one
separate firm for the Lenders or any Issuing Lender, unless there shall exist an actual conflict of
interest among such Persons, and in such case, not more than two separate firms, in connection with
any one such action or any separate but substantially similar or related actions in the same
jurisdiction, nor shall the Borrower be liable for any settlement or any proceeding effected
without the Borrower’s written consent. Such payments shall be made on the Closing Date and
thereafter on demand. The obligations of the Borrower under this Section











 



82



shall survive the termination of this Agreement and/or the payment of the Loans and/or
expiration of the Letters of Credit.




          SECTION 10.5. Indemnity.




          Further, by the execution hereof, the Borrower and each Subsidiary Borrower agrees to
indemnify and hold harmless the Administrative Agent and the Lenders and the Issuing Lenders and
their respective directors, officers, employees and agents (each, an “Indemnified Party”)
from and against any and all expenses (including reasonable and documented fees and disbursements
of counsel), losses, claims, damages and liabilities arising out of any claim, litigation,
investigation or proceeding (regardless of whether any such Indemnified Party is a party thereto)
in any way relating to the transactions contemplated hereby or the use or proposed use of the
proceeds, but excluding therefrom all expenses, losses, claims, damages, and liabilities arising
out of or resulting from the gross negligence or willful misconduct of the Indemnified Party
seeking indemnification or any of its Related Parties, provided, however, neither
the Borrower nor any Subsidiary Borrower shall be liable for the fees and expenses of more than one
separate firm for all such Indemnified Parties (unless there shall exist an actual conflict of
interest among such Indemnified Parties, and in such case, not more than two separate firms) in
connection with any one such action or any separate but substantially similar or related actions in
the same jurisdiction, nor shall the Borrower or any Subsidiary Borrower be liable for any
settlement of any proceeding effected without the Borrower’s or such Subsidiary Borrower’s written
consent, and provided further, however, that this Section 10.5 shall not be
construed to expand the scope of the reimbursement obligations of the Borrower and any Subsidiary
Borrower specified in Section 10.4. The obligations of the Borrower and any Subsidiary Borrower
under this Section 10.5 shall survive the termination of this Agreement and/or payment of the Loans
and/or the expiration of the Letters of Credit. No Indemnified Party shall be liable for any
special, indirect, consequential or punitive damages in connection with its activities relating to
this Agreement and the other Fundamental Documents.




          SECTION 10.6. CHOICE OF LAW.




          THIS AGREEMENT AND THE NOTES HAVE BEEN EXECUTED AND DELIVERED IN THE STATE OF NEW YORK AND
SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF SUCH STATE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF
PROVISIONS RELATING TO INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.




          SECTION 10.7. No Waiver.




          No failure on the part of the Administrative Agent, any Lender or any Issuing Lender to
exercise, and no delay in exercising, any right, power or remedy hereunder or with regards to the
Letters of Credit shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of
any other remedies provided by law.




          SECTION 10.8. Extension of Maturity.




          Except as otherwise specifically provided in Section 1 or 8 hereof, should any payment of
principal, interest or any other amount due hereunder become due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding Business Day and, in
the case of principal, interest shall be payable thereon at the rate herein specified during such
extension.












 



83




          SECTION 10.9. Amendments, etc.




          (a) Except as expressly set forth in this Agreement (including in Sections 2.14, 2.27, 2.28
and 2.29), no modification, amendment or waiver of any provision of this Agreement, and no consent
to any departure by the Borrower herefrom or therefrom, shall in any event be effective unless the
same shall be in writing and signed or consented to in writing by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given; provided, however, that no such modification or amendment shall
without the written consent of each Lender directly affected thereby (i) increase or extend the
expiration date of the Revolving Commitment of a Lender, (ii) alter the stated maturity or
principal amount of any installment of any Loan (or any reimbursement obligation with respect to a
Letter of Credit) or decrease the rate of interest payable thereon or extend the scheduled date of
any payment thereof, or the rate at which the Facility Fees or letter of credit fees or other fees
accrue, or extend the scheduled date of any payment thereof, (iii) waive a default under Section
7(b) hereof with respect to a scheduled principal installment of any Loan or (iv) release the
Borrower from its obligations under the Guaranty (except in accordance with its terms); and
provided, further that, except to the extent reasonably necessary to give effect to
Sections 2.14, 2.27, 2.28 and 2.29, no such modification or amendment shall without the written
consent of all of the Lenders (x) amend or modify any provision of this Agreement which provides
for the unanimous consent or approval of the Lenders or (y) amend this Section 10.9 or the
definition of Required Lenders. No such amendment or modification may adversely affect the rights
and obligations of the Administrative Agent or any Issuing Lender hereunder without its prior
written consent. No notice to or demand on the Borrower shall entitle the Borrower to any other or
further notice or demand in the same, similar or other circumstances. Each holder of a Note shall
be bound by any amendment, modification, waiver or consent authorized as provided herein, whether
or not a Note shall have been marked to indicate such amendment, modification, waiver or consent
and any consent by any holder of a Note shall bind any Person subsequently acquiring a Note,
whether or not a Note is so marked. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder
(and any amendment, waiver or consent which by its terms requires the consent of all Lenders or
each affected Lender may be effected with the consent of the applicable Lenders other than
Defaulting Lenders), except that (x) the Revolving Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that by its terms affects
any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.




          (b) This Agreement may be amended without consent of the Lenders, so long as no Default or
Event of Default shall have occurred and be continuing, as follows:





          (i) This Agreement will be amended to designate any Subsidiary of the Borrower as a
Subsidiary Borrower upon (v) ten Business Days prior notice (or such shorter period as may
be agreed to by the Administrative Agent in its sole discretion) to the Lenders (such
notice to contain the name, primary business address and taxpayer identification number of
such Subsidiary), (w) the execution and delivery by the Borrower, such Subsidiary and the
Administrative Agent of a Joinder Agreement, substantially in the form of Exhibit F (a
“Joinder Agreement”), providing for such Subsidiary to become a Subsidiary
Borrower, (x) the agreement and acknowledgment by the Borrower and each other Subsidiary
Borrower that the Guaranty contained in Section 9 covers the Obligations of such
Subsidiary and (y) the delivery to the Administrative Agent of (1) corporate or other
applicable resolutions, other corporate or other applicable documents, certificates and
legal opinions in respect of such Subsidiary substantially equivalent to comparable
documents delivered on the Closing Date and (2) such other documents with respect thereto
as the Administrative Agent shall reasonably request. The Administrative Agent and the
Lenders shall have received all documentation and other









 



84



information required by regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations, including the Patriot Act, requested by
such Person at least three Business Days prior to the effectiveness of the applicable
Joinder Agreement.




          (ii) This Agreement will be amended to remove any Subsidiary as a Subsidiary Borrower
upon execution and delivery by the Borrower to the Administrative Agent of a written
notification to such effect and repayment in full of all Loans made to such Subsidiary
Borrower, cash collateralization of all reimbursement obligations in respect of any
Letters of Credit issued for the account of such Subsidiary Borrower and repayment in full
of all other amounts owing by such Subsidiary Borrower under this Agreement (it being
agreed that any such repayment shall be in accordance with the other terms of this
Agreement); provided, however, that no such amendment shall affect or
limit the Borrower’s obligations under the Guaranty.



          (c) This Agreement may be amended with the consent of the Administrative Agent, the Borrower
and any other Person set forth in the applicable section in order to implement the provisions of
Sections 2.14(d)-(g), 2.27, 2.28 and 2.29.




          (d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to
add one or more additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and fees in respect
thereof to share ratably in the benefits of this Agreement and the other Fundamental Documents and
(b) to include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders.




          (e) Further, notwithstanding anything to the contrary contained in this Section, if the
Administrative Agent and Borrower shall have jointly identified an obvious error or any error or
omission of a technical or immaterial nature, in each case, in any provision of the Fundamental
Documents, then the Administrative Agent and Borrower shall be permitted to amend such provision
and such amendment shall become effective without any further action or consent of any other party
to any Fundamental Document if the same is not objected to in writing by the Required Lenders
within three Business Days following receipt of notice thereof.




          SECTION 10.10. Severability.




          Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          SECTION 10.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.




          (a) THE ADMINISTRATIVE AGENT, EACH LENDER AND ISSUING LENDER, THE BORROWER AND EACH SUBSIDIARY
BORROWER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK
LOCATED IN NEW YORK COUNTY AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT BY THE ADMINISTRATIVE AGENT, A
LENDER OR AN ISSUING LENDER. THE BORROWER AND EACH SUBSIDIARY BORROWER TO THE EXTENT PERMITTED BY
APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO











 



85



ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURTS, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION
OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT, AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR
PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE
FROM THE SAME SUBJECT MATTER. EACH LENDER, EACH ISSUING LENDER, THE BORROWER AND EACH SUBSIDIARY
BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT ITS ADDRESS TO WHICH NOTICES ARE TO BE
GIVEN PURSUANT TO SECTION 10.1 HEREOF. THE BORROWER AND EACH SUBSIDIARY BORROWER AGREES THAT ITS
SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF THE ADMINISTRATIVE AGENT, THE LENDERS AND EACH ISSUING LENDER. FINAL JUDGMENT AGAINST
THE BORROWER OR SUCH SUBSIDIARY BORROWER IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN ANY OTHER JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A
CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR (B) IN ANY OTHER MANNER
PROVIDED BY, OR PURSUANT TO, THE LAWS OF SUCH OTHER JURISDICTION, PROVIDED, HOWEVER, THAT THE
ADMINISTRATIVE AGENT, A LENDER OR AN ISSUING LENDER MAY AT ITS OPTION BRING SUIT, OR INSTITUTE
OTHER JUDICIAL PROCEEDINGS AGAINST THE BORROWER OR SUCH SUBSIDIARY BORROWER OR ANY OF ITS ASSETS IN
ANY STATE OR FEDERAL COURT OF THE UNITED STATES OR OF ANY COUNTRY OR PLACE WHERE THE BORROWER, SUCH
SUBSIDIARY BORROWER OR SUCH ASSETS MAY BE FOUND.




          (b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO
HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION,
OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS OF THIS SECTION
10.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES HAVE RELIED, ARE RELYING AND
WILL RELY IN ENTERING INTO THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION 10.11(b) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER
PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.




          SECTION 10.12. Headings.




          Section headings used herein are for convenience only and are not to affect the construction
of or be taken into consideration in interpreting this Agreement.

















 




86

          SECTION 10.13. Execution in Counterparts.




          This Agreement may be executed in any number of counterparts, each of which shall constitute
an original, but all of which taken together shall constitute one and the same instrument.




          SECTION 10.14. Entire Agreement.




          This Agreement represents the entire agreement of the parties with regard to the subject
matter hereof and the terms of any letters and other documentation entered into among the Borrower,
the Administrative Agent, the Syndication Agent or any Lender (other than the provisions of the
letter agreements dated January 22, 2010 among the Borrower, Bank of America, N.A., Banc of America
Securities LLC, J.P. Morgan Chase Bank, N.A. and J.P. Morgan Securities Inc. relating to fees and
expenses and syndication issues) prior to the execution of this Agreement which relate to Loans to
be made or the Letters of Credit to be issued hereunder shall be replaced by the terms of this
Agreement.




          SECTION 10.15. Confidentiality.




          Each of the Administrative Agent, the Issuing Lenders and the Lenders agrees that it will not
use, either directly or indirectly, any of the Confidential Information except in connection with
this Agreement and the transactions contemplated hereby. Neither the Administrative Agent, the
Issuing Lender or any Lender shall disclose to any Person the Confidential Information, except




          (a) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other professional advisors who need to know the Confidential
Information for purposes related to this Agreement or any other Fundamental Document or any
transactions contemplated thereby or reasonably incidental to the administration of this Agreement
or the other Fundamental Documents (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Confidential Information and agree to keep
such Confidential Information confidential in accordance with the provisions of this Section
10.15),




          (b) to the extent requested by any regulatory authority having jurisdiction over it or its
Affiliates,




          (c) to the extent required by Applicable Law, regulations or by any subpoena or similar legal
process, provided that the Administrative Agent, such Issuing Lender or such Lender, as the
case may be, shall request confidential treatment of such Confidential Information to the extent
permitted by Applicable Law and the Administrative Agent, such Issuing Lender or such Lender, as
the case may be, shall, to the extent permitted by Applicable Law, promptly inform the Borrower
with respect thereto so that the Borrower may seek appropriate protective relief to the extent
permitted by Applicable Law, provided further that in the event that such
protective remedy or other remedy is not obtained, the Administrative Agent, such Issuing Lender or
such Lender, as the case may be, shall furnish only that portion of the Confidential Information
that is legally required and shall disclose the Confidential Information in a manner reasonably
designed to preserve its confidential nature,




          (d) to any other Lender 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 the enforcement of rights hereunder,




          (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











 



87



rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower and its obligations,




          (g) with the prior written 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 10.15 or (ii) becomes available to the Administrative Agent, any Issuing
Lender or any Lender on a nonconfidential basis from a source other than the Borrower, its
Affiliates or Representatives, which source, to the reasonable knowledge of the Administrative
Agent, the Issuing Lender or any Lender, as may be appropriate, is not prohibited from disclosing
such Confidential Information to the Administrative Agent, Issuing Bank or such Lender by a
contractual, legal or fiduciary obligation, to the Borrower, the Administrative Agent or any
Lender.




          (i) Neither the Administrative Agent nor any Lender shall make any public announcement,
advertisement, statement or communication regarding the Borrower, its Affiliates or this Agreement
or the transactions contemplated hereby without the prior written consent of the Borrower. The
obligations of the Administrative Agent and each Lender under this Section 10.15 shall survive the
termination or expiration of this Agreement.




          
SECTION 10.16. USA PATRIOT Act. Each Lender hereby notifies the Borrower and each Subsidiary Borrower
party hereto that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower or such Subsidiary Borrower and other information that will allow such Lender to
identify the Borrower or such Subsidiary Borrower in accordance with the Act. The Borrower and
each Subsidiary Borrower party hereto shall promptly provide such information upon request by any
Lender. In connection therewith, each Lender hereby agrees that the confidentiality provisions set
forth in Section 10.15 shall apply to any non-public information provided to it by the Borrower and
its Subsidiaries pursuant to this Section 10.16.




          SECTION 10.17. Replacement of Lenders.




          If any Lender refuses to consent to an amendment, modification or waiver of this Agreement
that is approved by the Required Lenders pursuant to Section 10.9 (a “Non-Consenting
Lender”), if any Lender makes a claim for payment under Section 2.16, 2.17 or 2.18, if any
Lender is a Defaulting Lender, or under any other circumstances set forth herein expressly
providing that the Borrower shall have the right to replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent and subject to Section
2.19, replace such Lender by causing such Lender to assign its Commitment (with the assignment fee
to be paid by the Borrower in such instance) pursuant to Section 10.3 to one or more Eligible
Assignees procured by the Borrower upon receipt of accrued fees and interest and all other amounts
due and owing to it.





          SECTION 10.18. No Advisory or Fiduciary Responsibility.




          In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Fundamental
Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent and the other Agents are arm’s-length commercial transactions between the
Borrower and its Affiliates, on the one hand, and the Administrative Agent and the other Agents, on
the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed











 



88



appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Fundamental
Documents; (ii) (A) the Administrative Agent and each other Agent has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates,
or any other Person and (B) neither the Administrative Agent nor any other Agent has any obligation
to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Fundamental Documents; and
(iii) the Administrative Agent and the other Agents and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of the Borrower and
its Affiliates, and neither the Administrative Agent nor any other Agent has any obligation to
disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted
by law, the Borrower hereby waives and releases any claims that it may have against the
Administrative Agent and the other Agents with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby.














 



 




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




	 	 	 	 	 
	 	WYNDHAM WORLDWIDE CORPORATION,

as Borrower

 	 
	 	By:  	/s/
Thomas G. Conforti 	 
	 	 	Name:  	Thomas G. Conforti 	 
	 	 	Title:  	Executive Vice President
and Chief Financial
Officer 	 
	 
	 	BANK OF AMERICA, N.A,

as Administrative Agent, Lender, Swingline Lender and

Issuing Lender

 	 
	 	By:  	/s/ Lesa J. Butler 	 
	 	 	Name:  	Lesa J. Butler 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A,

as Syndication Agent, Issuing Lender and Lender

 	 
	 	By:  	/s/ Matthew H. Massie 	 
	 	 	Name:  	Matthew H. Massie	 
	 	 	Title:  	Managing Director 	 
	 



SIGNATURE PAGE TO CREDIT AGREEMENT











 



 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/
George Sherman
 	 
	 	 	Name:  	George Sherman 	 
	 	 	Title:  	Director 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Lender

 	 
	 	By:  	/s/
J. T. Johnston Coe	 
	 	 	Name:  	J. T. Johnston Coe	 
	 	 	Title:  	Director  	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Lender

 	 
	 	By:  	/s/
Joanna Soliman	 
	 	 	Name:  	Joanna Soliman	 
	 	 	Title:  	Vice President  	 
	 
	 	DEUTSCHE BANK SECURITIES INC.

as Co-Documentation Agent

 	 
	 	By:  	/s/
Authorized Signatory	 
	 	 	Name:  	Authorized Signatory	 
	 	 	Title:  	Director 	 
	 
	 	DEUTSCHE BANK SECURITIES INC.

as Co-Documentation Agent 

 	 
	 	By:  	/s/
J. T. Johnston Coe	 
	 	 	Name:  	J. T. Johnston Coe 	 
	 	 	Title:  	Managing Director 	 
	 
	 	THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/
Michaela V. Galluzzo 	 
	 	 	Name:  	Michaela V. Galluzzo 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as Co-Documentation Agent and Lender

 	 
	 	By:  	/s/
Karl Studer 	 
	 	 	Name:  	Karl Studer 	 
	 	 	Title:  	Director 	 
	 
	 	By:  	/s/
Jay Chall	 
	 	 	Name:  	Jay Chall 	 
	 	 	Title:  	Director 	 




SIGNATURE PAGE TO CREDIT AGREEMENT










 



 





     Signature Page to

Wyndham Worldwide Corporation

Credit Agreement



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/
Michaela V. Galluzzo	 
	 	 	Name:  	Michaela V. Galluzzo	 
	 	 	Title:  	Senior Vice President	 
	 
	 	National Australia Bank Limited

 	 
	 	By:  	/s/
Dominic C. Franklin	 
	 	 	Name:  	Dominic C. Franklin	 
	 	 	Title:  	Managing Director	 
	 
	 	WELLS FARGO BANK, N.A.

 	 
	 	By:  	/s/
James Travagline	 
	 	 	Name:  	James Travagline	 
	 	 	Title:  	Director	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD.,
NEW YORK BRANCH
 	 
	 
	 	By:  	/s/
Kenneth K. Egusa	 
	 	 	Name:  	Kenneth K. Egusa	 
	 	 	Title:  	Authorized Signatory 	 




SIGNATURE PAGE TO CREDIT AGREEMENT




 










 



 





     Signature Page to

Wyndham Worldwide Corporation

Credit Agreement



	 	 	 	 	 
	 	US Bank, National Association

 	 
	 	By:  	/s/
Steven L. Sawyer	 
	 	 	Name:  	Steven L. Sawyer	 
	 	 	Title:  	Vice President	 
	 
	 	Compass Bank

 	 
	 	By:  	/s/
Keely W. McGee	 
	 	 	Name:  	Keely W. McGee	 
	 	 	Title:  	Senior Vice President	 
	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	/s/
Alexis Maged	 
	 	 	Name:  	Alexis Maged	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	WESTPAC BANKING CORPORATION	 
	 
	 	By:  	/s/
Henrik Jensen	 
	 	 	Name:  	Henrik Jensen	 
	 	 	Title:  	Director, Corporate & Institutional Banking


Americas	 
	 
	 	Bank of Taiwan, New York Agency	 
	 
	 	By:  	/s/
Thomas K.C. Wu	 
	 	 	Name:  	Thomas K.C. Wu	 
	 	 	Title:  	VP & General Manager 	 




SIGNATURE PAGE TO CREDIT AGREEMENT




 










 



 





     Signature Page to

Wyndham Worldwide Corporation

Credit Agreement



	 	 	 	 	 
	 	Chang Hwa Commercial Bank, Ltd., New York Branch 

 	 
	 	By:  	/s/ Eric Y.S. Tsai	 
	 	 	Name:  	Eric Y.S. Tsai	 
	 	 	Title:  	VP & General Manager	 



	 	 	 	 	 
	 	HUA NAN COMMERCIAL BANK, LTD.

NEW YORK AGENCY

 	 
	 	By:  	/s/ Lie-Pun Lin	 
	 	 	Name:  	Lie-Pun Lin	 
	 	 	Title:  	Assistant Vice President	 



	 	 	 	 	 
	 	First Commercial Bank, New York Agency

 	 
	 	By:  	/s/ Jenn-Hwa Wang	 
	 	 	Name:  	Jenn-Hwa Wang	 
	 	 	Title:  	General Manager	 
	 



SIGNATURE PAGE TO CREDIT AGREEMENT



 











 





Schedule 2.1




COMMITMENTS




	 	 	 	 	 
	Lender	 	Revolving Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	114,000,000	 
	Bank of America, N.A.
	 	$	100,000,000	 
	Credit Suisse AG, Cayman Islands Branch
	 	$	95,000,000	 
	Deutsche Bank AG New York Branch
	 	$	95,000,000	 
	The Bank of Nova Scotia
	 	$	95,000,000	 
	The Royal Bank of Scotland plc
	 	$	95,000,000	 
	National Australia Bank Limited
	 	$	75,000,000	 
	Wells Fargo Bank, N.A.
	 	$	75,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York
Branch
	 	$	50,000,000	 
	US Bank, National Association
	 	$	50,000,000	 
	Compass Bank
	 	$	30,000,000	 
	Goldman Sachs Bank USA
	 	$	25,000,000	 
	Westpac Banking Corporation
	 	$	15,000,000	 
	Bank of Taiwan, New York Agency
	 	$	10,000,000	 
	Chang Hwa Commercial Bank, Ltd., New York Branch
	 	$	10,000,000	 
	Hua Nan Commercial Bank, Ltd., New York Agency
	 	$	8,500,000	 
	First Commercial Bank, New York Agency
	 	$	7,500,000	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL:
	 	$	950,000,000	 






 









 





Schedule 2.26




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Expiration
	Bank	 	Amount	 	Beneficiary	 	Effective Date	 	Date
	JPMorgan Chase

	 	$	36,668.00	 	 	Town of Estes Park
	 	11/2/2005
	 	5/7/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	25,000.00	 	 	City of Oceanside
	 	12/20/2005
	 	12/15/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	1,464,665.53	 	 	Banco Bilbao Vizcaya (BBV)
	 	7/3/1997
	 	7/2/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	5,000.00	 	 	Best Western
International, Inc.
	 	7/27/2004
	 	7/26/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	20,000.00	 	 	Delta Airlines, Inc.
	 	8/5/2002
	 	8/5/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	14,975,000.00	 	 	American Casualty
Company of Reading
	 	9/29/2006
	 	9/13/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	533,440.00	 	 	National Union Fire Ins Company
	 	2/9/2007
	 	7/31/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	5,773,000.00	 	 	First American
Title Insurance
Company
For
the Benefit of
Baraboo National
Bank,
Tennessee Master
Holdings, LC,
Wilderness Resort
Construction, LLC
and
Wilderness
Tennessee Venture
No. 3 LLC
	 	2/1/2008
	 	8/31/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	7,447,000.00	 	 	First American
Title Insurance
Company
For
the Benefit of
	 	2/1/2008
	 	8/31/2010






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Expiration
	Bank	 	Amount	 	Beneficiary	 	Effective Date	 	Date
	 

	 	 	 	 	 	Baraboo National
Bank,
Tennessee
Master Holdings,
LC, Wilderness
Resort
Construction, LLC
and
Wilderness
Tennessee Venture
No. 3 LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	500,000.00	 	 	Ballards Pointe III, LLC
	 	7/31/2008
	 	10/29/2010
	 
	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase

	 	$	27,808.65	 	 	Massachusetts Mutual Life Insurance Company
	 	12/4/2009
	 	10/20/2010
	 
	 	 	 	 	 	 	 	 	 	 
	Total

	 	$	30,807,582.18	 	 	 	 	 	 	 






 









 





Schedule 3.16




MATERIAL SUBSIDIARIES



1. RCI, LLC



2. Wyndham Vacation Resorts, Inc.





 











 





EXHIBIT A




FORM OF

OPINION OF KIRKLAND & ELLIS LLP








601 Lexington Ave.

New York, New York 10022-4611



					

	 

	 	 	 	Facsimile:
	 

	 	212 446-4800
	 	212 446-4900






www.kirkland.com



March 29, 2010



To Bank of America, N.A., as Administrative Agent

and each of the Lenders under the

Credit Agreement (referred to below)

on the date hereof (the “Lenders”):





			
	     Re:	 	Credit Agreement dated as of March 29, 2010, by and among WYNDHAM WORLDWIDE
CORPORATION, a Delaware corporation (the “Borrower”), the lenders referred to
therein (the “Lenders”), JPMORGAN CHASE BANK, N.A., as syndication agent (the
“Syndication Agent”), THE BANK OF NOVA SCOTIA, DEUTSCHE BANK AG NEW YORK
BRANCH, THE ROYAL BANK OF SCOTLAND PLC, and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as
co-documentation agents (the “Co-Documentation Agents”), and BANK OF AMERICA,
N.A., as administrative agent (the “Administrative Agent”; together with the
Syndication Agent, and the Co-Documentation Agents, the “Agents”) for the
Lenders (such credit agreement herein referred to as the “Credit Agreement”)




Ladies and Gentlemen:




     We are issuing this opinion letter in our capacity as special counsel to the Borrower under
the Credit Agreement.



     The opinions expressed hereby are being provided pursuant to Section 4.1(e) of the Credit
Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given
to such terms in the Credit Agreement (with references herein to the Credit Agreement and each
document defined therein meaning the Credit Agreement and each such document as executed and
delivered on the date hereof (or if executed and delivered on an earlier date, as the same is in
effect on the date hereof)). The Lenders and the Agents are sometimes referred to in this opinion
letter as “you”.



 









 





March 29, 2010

Page 2




     We have reviewed executed counterparts of the Credit Agreement in the form executed and
delivered on this date.



     Subject to the assumptions, qualifications, exclusions and other limitations which are
identified in this opinion letter and in the schedules attached to this letter, we advise you, and
with respect to each legal issue addressed in this opinion letter, it is our opinion, that:




	1.	 	The Borrower is a corporation, existing and in good standing under the Delaware General
Corporations Law, as in effect on the date hereof (“DGCL”).
	 
	2.	 	The Borrower has the corporate power to execute and deliver the Credit Agreement and to
perform its obligations under the Credit Agreement.
	 
	3.	 	The board of directors of the Borrower has adopted by requisite vote the resolutions
necessary to authorize the execution and delivery of the Credit Agreement, and the performance
by the Borrower of its obligations thereunder. The adoption of such resolutions is the only
corporate action required under the DGCL to be taken by the Borrower in order to authorize the
execution and delivery of the Credit Agreement and the performance by the Borrower of its
obligations thereunder.
	 
	4.	 	The Borrower has duly executed and delivered the Credit Agreement.
	 
	5.	 	The Credit Agreement is a valid and binding obligation of the Borrower and is enforceable
against the Borrower in accordance with its terms.
	 
	6.	 	The execution and delivery by the Borrower and the performance of its obligations under the
Credit Agreement will not (a) violate any existing provisions of the certificate of
incorporation, or bylaws of the Borrower, or (b) based on existing facts of which we are
aware, constitute a violation by the Borrower of any applicable provision of existing
statutory law or governmental regulation applicable to the Borrower and covered by this
opinion letter.
	 
	7.	 	The Borrower is not presently required to obtain any material consent, approval,
authorization or order of, or make any filings with any United States federal or State of New
York court or governmental body, authority or agency in order to obtain the right (a) to
execute and deliver the Credit Agreement, or (b) to perform its obligations under the Credit
Agreement except for (i) those obtained or made on or prior to the date hereof and (ii)
actions or filings required in connection with the ordinary course conduct by the Borrower of
its business and ownership or operation by the Borrower of its assets (as to each of which we
express no opinion).
	 
	8.	 	The Borrower is not required to register as an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.





 









 





March 29, 2010

Page 3





	9.	 	Assuming the Borrower complies with the provisions of the Credit Agreement relating to the
use of proceeds, neither the execution and delivery by the Borrower of the Credit Agreement,
nor the consummation of the lending transactions contemplated therein to occur on or prior to
the date hereof in accordance therewith has resulted in a violation of Regulation U or X of
the Board of Governors of the Federal Reserve System.
	 
	10.	 	To our actual knowledge, no litigation which on the date of this letter is pending against
the Borrower with a court seeks to enjoin or obtain damages by reason of the Borrower’s
execution or delivery of the Credit Agreement or the performance by the Borrower of any of its
agreements in the Credit Agreement. For purposes of this letter, our Designated Transaction
Lawyers have not undertaken any investigation to identify any litigation which is pending or
threatened against the Borrower.





     In preparing this letter, we have relied without any independent verification upon the
assumptions recited in Schedule B hereto and upon: (i) information contained in
certificates obtained from governmental authorities; (ii) factual information represented to be
true in the Credit Agreement; (iii) factual information provided to us in a support certificate
signed by the Borrower; and (iv) factual information we have obtained from such other sources as we
have deemed reasonable. We have examined the originals or copies certified to our satisfaction of
such other corporate records of the Borrower as we deem necessary for or relevant to our opinions,
certificates of public officials and the officers of the Borrower and we have assumed without
investigation that there has been no relevant change or development between the dates as of which
the information cited in the preceding sentence was given and the date of this letter and that the
information upon which we have relied is accurate and does not omit disclosures necessary to
prevent such information from being misleading. For the purposes of the opinions in opinion
paragraph 1, we have relied exclusively upon certificates issued by a governmental authority in the
relevant jurisdiction, and such opinions are not intended to provide any conclusion or assurance
beyond that conveyed by those certificates.



     While we have not conducted any independent investigation to determine facts upon which our
opinions are based or to obtain information about which this letter advises you, we confirm that we
do not have any actual knowledge which has caused us to conclude that our reliance and assumptions
cited in the preceding paragraph, are unwarranted or that any information supplied in this letter
is wrong. The terms “knowledge,” “actual knowledge” and “aware” whenever
used in this letter with respect to our firm mean conscious awareness at the time this letter is
delivered on the date it bears by the following Kirkland & Ellis LLP lawyers who are the only
lawyers at Kirkland & Ellis LLP that have had significant involvement with the negotiation or
preparation of the Credit Agreement (herein called our “Designated Transaction Lawyers”):
Jason Kanner, Eric Wedel and Kathryn Leonard.



     Except as set forth in the following sentences of this paragraph, our advice on every legal
issue addressed in this letter is based exclusively on the internal laws of the State of New York
or the Federal law of the United States which, in each case, in our experience is generally



 









 





March 29, 2010

Page 4



applicable both to general business organizations which are not engaged in regulated business
activities and to transactions of the type contemplated in the Credit Agreement by the Borrower, on
the one hand, and you, on the other hand (but without our having made any special investigation as
to any other laws), except that we express no opinion or advice as to any law or legal issue (a)
which might be violated by any misrepresentation or omission or a fraudulent act, or (b) to which
the Borrower may be subject as a result of your legal or regulatory status, your sale or transfer
of the Loans or interests therein or your (as opposed to any other lender’s) involvement in the
transactions contemplated by the Credit Agreement. For purposes of paragraphs 1 through 4 and 6(a)
our opinions are based on the DGCL (without regard to judicial interpretation thereof or rules or
regulations promulgated thereunder), as published by Aspen Publishers, Inc., as supplemented
through December 30, 2009 (we note however that we are not admitted to practice law in the State of
Delaware). We advise you that issues addressed by this letter may be governed in whole or in part
by other laws, but we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually govern. Our opinions
are subject to all applicable qualifications in Schedule A hereto and do not cover or
otherwise address any law or legal issue which is identified in Schedule C hereto or any
provision in the Credit Agreement of any type identified in Schedule D hereto. Provisions
in the Credit Agreement which are not excluded by Schedule D or any other part of this
letter or its attachments are called the “Relevant Agreement Terms.”




     Our advice on each legal issue addressed in this letter represents our opinion as to how that
issue would be resolved were it to be considered by the highest court of the jurisdiction upon
whose law our opinion on that issue is based. The manner in which any particular issue would be
treated in any actual court case would depend in part on facts and circumstances particular to the
case, and this letter is not intended to guarantee the outcome of any legal dispute which may arise
in the future. It is possible that some Relevant Agreement Terms of a remedial nature contained in
the Credit Agreement may not prove enforceable for reasons other than those cited in this letter
should an actual enforcement action be brought, but (subject to all the exceptions, qualifications,
exclusions and other limitations contained in this letter) such unenforceability would not in our
opinion prevent you from realizing the principal benefits purported to be provided by the Relevant
Agreement Terms of a remedial nature contained in the Credit Agreement.



     This opinion letter speaks as of the time of its delivery on the date it bears. We do not
assume any obligation to provide you with any subsequent opinion or advice by reason of any fact
about which our Designated Transaction Lawyers did not have actual knowledge at that time, by
reason of any change subsequent to that time in any law covered by any of our opinions, or for any
other reason. The attached schedules are an integral part of this letter, and any term defined in
this letter or any schedule has that defined meaning wherever it is used in this letter or in any
schedule to this letter.



 









 





March 29, 2010

Page 5




     You may rely upon this letter only for the purpose served by the provision in the Credit
Agreement cited in the second paragraph of this opinion letter in response to which it has been
delivered. Without our written consent: (i) no person other than you may rely on this opinion
letter for any purpose; (ii) this opinion letter may not be cited or quoted in any financial
statement, prospectus, private placement memorandum or other similar document; (iii) this opinion
letter may not be cited or quoted in any other document or communication which might encourage
reliance upon this opinion letter by any person or for any purpose excluded by the restrictions in
this paragraph; and (iv) copies of this opinion letter may not be furnished to anyone for purposes
of encouraging such reliance. Notwithstanding the foregoing, financial institutions which
subsequently become Lenders in accordance with the terms of Section 10.3 of the Credit Agreement
may rely on this opinion letter as of the time of its delivery on the date hereof as if this letter
were addressed to them.



	 	 	 	 	 
	 	Sincerely,







KIRKLAND & ELLIS LLP

 	 
	 	 	 
	 	 	 
	 	 	 
	 




 









 





Schedule A




General Qualifications



     All of our opinions (“our opinions”) in the letter to which this Schedule is attached
(“our letter”) are subject to each of the qualifications set forth in this Schedule.




	1.	 	Bankruptcy and Insolvency Exception. Each of our opinions is subject to the effect
of bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws
relating to or affecting creditors’ rights generally. This exception includes:






	 	(a)	 	the federal Bankruptcy Code and thus comprehends, among others, matters of
turn-over, automatic stay, avoiding powers, fraudulent transfer, preference, discharge,
conversion of a non-recourse obligation into a recourse claim, limitations on ipso
facto and anti-assignment clauses and the coverage of pre-petition security agreements
applicable to property acquired after a petition is filed;
	 
	 	(b)	 	all other federal and state bankruptcy, insolvency, reorganization,
receivership, moratorium, arrangement and assignment for the benefit of creditors laws
that affect the rights of creditors generally or that have reference to or affect only
creditors of specific types of debtors;
	 
	 	(c)	 	state fraudulent transfer and conveyance laws; and
	 
	 	(d)	 	judicially developed doctrines in this area, such as substantive consolidation
of entities, equitable subordination and the recharacterization of debt.






	2.	 	Equitable Principles Limitation. Each of our opinions is subject to the effect of
general principles of equity, whether applied by a court of law or equity. This limitation
includes principles:






	 	(a)	 	governing the availability of specific performance, injunctive relief or other
equitable remedies, which generally place the award of such remedies, subject to
certain guidelines, in the discretion of the court to which application for such relief
is made;
	 
	 	(b)	 	affording equitable defenses (e.g., waiver, laches and estoppel) against a
party seeking enforcement;
	 
	 	(c)	 	requiring good faith and fair dealing in the performance and enforcement of a
contract by the party seeking its enforcement;
	 
	 	(d)	 	requiring reasonableness in the performance and enforcement of an agreement by
the party seeking enforcement of the contract;
	 
	 	(e)	 	requiring consideration of the materiality of (i) a breach and (ii) the
consequences of the breach to the party seeking enforcement;





A - 1









 






	 	(f)	 	requiring consideration of the commercial impracticability or impossibility of
performance at the time of attempted enforcement; and
	 
	 	(g)	 	affording defenses based upon the unconscionability of the enforcing party’s
conduct after the parties have entered into the contract.






	3.	 	Other Common Qualifications. Each of our opinions is subject to the effect of rules
of law that:






	 	(a)	 	limit or affect the enforcement of provisions of a contract that purport to
waive, or to require waiver of, the obligations of good faith, fair dealing, diligence
and reasonableness;
	 
	 	(b)	 	provide that forum selection clauses in contracts are not necessarily binding
on the court(s) in the forum selected;
	 
	 	(c)	 	limit the availability of a remedy under certain circumstances where another
remedy has been elected;
	 
	 	(d)	 	provide a time limitation after which a remedy may not be enforced;
	 
	 	(e)	 	limit the right of a creditor to use force or cause a breach of the peace in
enforcing rights;
	 
	 	(f)	 	limit the enforceability of provisions releasing, exculpating or exempting a
party from, or requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves negligence, recklessness,
willful misconduct, unlawful conduct, violation of public policy, for strict product
liability or for liabilities arising under securities laws or litigation against
another party determined adversely to such party;
	 
	 	(g)	 	may, where less than all of a contract may be unenforceable, limit the
enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange;
	 
	 	(h)	 	govern and afford judicial discretion regarding the determination of damages
and entitlement to attorneys’ fees and other costs;
	 
	 	(i)	 	may permit a party that has materially failed to render or offer performance
required by the contract to cure that failure unless (i) permitting a cure would
unreasonably hinder the aggrieved party from making substitute arrangements for
performance, or (ii) it was important in the circumstances to the aggrieved party that
performance occur by the date stated in the contract;
	 
	 	(j)	 	may render guarantees or other similar instruments or agreements unenforceable
under circumstances where your actions, failures to act or waivers, amendments or
replacement of the Credit Agreement evidencing or relating to the guaranteed
obligations (i) so radically change the essential nature of the terms and conditions




A - 2









 






	 	 	 	of the guaranteed obligations and the related transactions that, in effect, a new
relationship has arisen between you and the Borrower which is substantially and
materially different from that presently contemplated primary obligor; and by the
Credit Agreement or (ii) impair the guarantor’s recourse against the primary
obligor;






	 	(k)	 	limit the enforceability of requirements in the Credit Agreement that
provisions therein may only be waived or amended in writing, to the extent that an oral
agreement or an implied agreement by trade practice or course of conduct has been
created modifying any such provision.






	4.	 	Referenced Provision Qualification. Each provision (the “First Provision”)
in the Credit Agreement requiring the Borrower to perform its obligations under, or to cause
any other person to perform its obligations under, any other provision (the “Second
Provision”) of the Credit Agreement, or stating that any action will be taken as provided
in or in accordance with any such Second Provision, are subject to the same qualifications as
the corresponding opinion in this letter relating to the validity, binding effect and
enforceability of such Second Provision.
	 
	5.	 	Lender’s Regulatory Qualification. We express no opinion with respect to, and our
opinions are subject to, the effect of the compliance or noncompliance of each of you with any
state or federal laws or regulations applicable to you because of your legal or regulatory
status or the nature of your business or requiring you to qualify to conduct business in any
jurisdiction.
	 
	6.	 	Usury Qualification. We express no opinion with regard to usury or other laws
limiting or regulating the maximum amount of interest that may be charged, collected, received
or contracted for, other than the internal laws of the State of New York and, without limiting
the foregoing, we expressly disclaim any opinions as to the usury or other such laws of any
other jurisdiction (including laws of other states made applicable through principles of
federal preemption or otherwise) which may be applicable to the transactions contemplated by
the Credit Agreement.





A - 3









 





Schedule B




Assumptions



     For purposes of our letter, we have relied, without investigation, upon each of the following
assumptions:




	1.	 	You are existing and in good standing in your jurisdiction of organization.
	 
	2.	 	You have full power and authority (including without limitation under the laws of your
jurisdiction of organization) to execute, deliver and to perform your obligations under the
Credit Agreement and the Credit Agreement has been duly authorized by all necessary action on
your part and has been duly executed and duly delivered by you.
	 
	3.	 	The Credit Agreement constitutes valid and binding obligations of yours and are enforceable
against you in accordance with their terms (subject to qualifications, exclusions and other
limitations similar to those applicable to our letter).
	 
	4.	 	You have complied with all legal requirements pertaining to your status as such status
relates to your rights to enforce the Credit Agreement to which you are a party against the
Borrower.
	 
	5.	 	You have satisfied those legal requirements that are applicable to you to the extent
necessary to make the Credit Agreement enforceable against you.
	 
	6.	 	You have acted in good faith and without notice of any defense against the enforcement of any
rights created by, or adverse claim to any property or security interest transferred or
created as part of, the transactions effected under the Credit Agreement (herein called the
“Transactions”).
	 
	7.	 	Each document submitted to us for review is accurate and complete, each such document that is
an original is authentic, each such document that is a copy conforms to an authentic original,
and all signatures on each such document are genuine.
	 
	8.	 	Each certificate obtained from a governmental authority relied on by us is accurate, complete
and authentic, and all relevant official public records to which each such certificate relates
are accurate and complete.
	 
	9.	 	There has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue
influence.
	 
	10.	 	The conduct of the parties to the Credit Agreement has complied with any requirement of good
faith, fair dealing and conscionability.
	 
	11.	 	With respect to the opinions set forth in paragraphs 6 and 7 of this letter, all parties to
the Transactions will act in accordance with, and will refrain from taking any action that is
forbidden by, the terms and conditions of the Credit Agreement.





B - 1









 






	12.	 	There are no agreements or understandings among the parties, written or oral, and there is no
usage of trade or course or prior dealing among the parties that would, in either case,
define, supplement or qualify the terms of the Credit Agreement.
	 
	13.	 	With respect to the opinions set forth in paragraphs 6 and 7 of this letter, the Borrower
will not in the future take any discretionary action (including a decision not to act)
permitted under the Credit Agreement that would result in a violation of law or constitute a
breach or default under any other agreements or court orders to which the Borrower may be
subject.
	 
	14.	 	No Lender is subject to Regulation T of the Board of Governors of the Federal Reserve System;
and no proceeds of the Loans will be used for the purpose of acquiring “margin securities” as
such term is defined in Regulation U or for any purpose which would violate or be inconsistent
with the Credit Agreement.
	 
	15.	 	The constitutionality or validity of a relevant statute, rule, regulation or agency action is
not in issue.
	 
	16.	 	All agreements, other than the Credit Agreement (if any) with respect to which we have
provided advice in our letter or reviewed in connection with our letter, would be enforced as
written.
	 
	17.	 	With respect to the opinions set forth in opinion paragraphs 5, 6 and 7, we assume the
Borrower will in the future obtain all permits and governmental approvals required, relevant
to the consummation of the transactions to be consummated pursuant to the Credit Agreement or
performance of the Credit Agreement.
	 
	18.	 	All information required to be disclosed in connection with any consent or approval by the
board of directors or stockholders (or equivalent governing group) of the Borrower and all
other information required to be disclosed in connection with any issue relevant to our
opinions has in fact been fully and fairly disclosed to all persons to whom it is required to
be disclosed.
	 
	19.	 	The Borrower’s certificate of incorporation (or equivalent governing instrument), all
resolutions adopted establishing classes or series of stock or other equity interests under
that instrument, and the Borrower’s bylaws (or equivalent governing instrument) (“Charter
Documents”), and all amendments to such Charter Documents, have been adopted in accordance
with all applicable legal requirements.
	 
	20.	 	Each person who has taken any action relevant to any of our opinions in the capacity of
director or officer was duly elected to that director or officer position and held that
position when such action was taken.





B - 2









 





Schedule C




Excluded Law and Legal Issues



     None of the opinions or advice contained in our letter covers or otherwise addresses any of
the following laws, regulations or other governmental requirements or legal issues:




	21.	 	federal securities laws and regulations (including all other laws and regulations
administered by the United States Securities and Exchange Commission), state “Blue Sky” laws
and regulations, and laws and regulations relating to commodity (and other) futures and
indices and other similar instruments (except with respect to the Investment Company Act of
1940, as amended, to the extent of our opinion in opinion paragraph 10);
	 
	22.	 	pension and employee benefit laws and regulations (e.g., ERISA);
	 
	23.	 	federal and state antitrust and unfair competition laws and regulations;
	 
	24.	 	compliance with fiduciary duty requirements;
	 
	25.	 	the statutes and ordinances, the administrative decisions and the rules and regulations of
counties, towns, municipalities and special political subdivisions and judicial decisions to
the extent that they deal with any of the foregoing;
	 
	26.	 	fraudulent transfer and fraudulent conveyance laws;
	 
	27.	 	federal patent, trademark and copyright, state trademark, and other federal and state
intellectual property laws and regulations;
	 
	28.	 	federal and state environmental, land use and subdivision, tax, racketeering (e.g., RICO),
health and safety (e.g., OSHA), and labor laws and regulations;
	 
	29.	 	any laws relating to terrorism or money laundering, including Executive Order No. 13224, 66
Fed. Reg. 49079 (published September 25, 2001) (the “Terrorism Executive Order”) or any
related enabling legislation or any other similar executive order (collectively with the
Terrorism Executive Order, the “Executive Orders”), the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public
Law 107-56, the “Patriot Act”), any sanctions and regulations promulgated under authority
granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time,
the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to
time, the Iraqi Sanctions Act, Publ. L. No. 101-513; United Nations Participation Act, 22
U.S.C. § 287c, as amended from time to time, the International Security and Development
Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act,
22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic
Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign
Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time;





C - 1









 






	30.	 	the effect of any law, regulation or order which hereafter is enacted, promulgated or issued;
	 
	31.	 	other than the specific opinion set forth in opinion paragraph 9, Federal Reserve Board
margin regulations;
	 
	32.	 	other than the specific opinion set forth in opinion paragraph 7, federal and state laws and
regulations concerning filing and notice requirements, other than requirements applicable to
charter-related documents such as a certificate of merger;
	 
	33.	 	federal and state laws, regulations and policies concerning (i) national and local emergency,
(ii) possible judicial deference to acts of sovereign states, and (iii) criminal and civil
forfeiture laws;
	 
	34.	 	other federal and state statutes of general application to the extent they provide for
criminal prosecution (e.g., mail fraud and wire fraud statutes); and
	 
	35.	 	the Communications Act and the rules, regulations and policies of the Federal Communications
Commission promulgated thereunder.






C - 2











 





Schedule D




Excluded Provisions



     None of the opinions in the letter to which this Schedule is attached covers or otherwise
addresses any of the following types of provisions which may be contained in the Credit Agreement:




	36.	 	Choice-of-law provisions, other than the selection of New York law under choice of law rules
in New York.






	37.	 	Indemnification for negligence, willful misconduct or other wrongdoing or strict product
liability or any indemnification for liabilities arising under securities laws.






	38.	 	Provisions mandating contribution towards judgments or settlements among various parties.






	39.	 	Waivers of (i) legal or equitable defenses, (ii) rights to damages, (iii) rights to counter
claim or set-off, (iv) statutes of limitations, (v) rights to notice, (vi) the benefits of
statutory, regulatory, or constitutional rights, unless and to the extent the statute,
regulation, or constitution explicitly allows waiver, (vii) broadly or vaguely stated rights,
and (viii) other benefits, in each case, to the extent they cannot be waived under applicable
law.






	40.	 	Provisions providing for forfeitures or the recovery of amounts deemed to constitute
penalties, or for liquidated damages, acceleration of future amounts due (other than
principal) without appropriate discount to present value, late charges, prepayment charges,
and increased interest rates upon default.






	41.	 	Time-is-of-the-essence clauses.






	42.	 	Provisions which provide a time limitation after which a remedy may not be enforced.






	43.	 	Agreements to submit to the jurisdiction of any particular court or other governmental
authority (either as to personal or subject matter jurisdiction); provisions restricting
access to courts; waiver of service of process requirements which would otherwise be
applicable; and provisions otherwise purporting to affect the jurisdiction and venue of
courts.






	44.	 	Provisions appointing one party as an attorney in fact for an adverse party or providing that
the decision of any particular person will be conclusive or binding on others.






	45.	 	Provisions purporting to limit rights of third parties who have not consented thereto or
purporting to grant rights to third parties.






	46.	 	Provisions which purport to award attorneys’ fees solely to one party.




D-1









 












	47.	 	Provisions purporting to create a trust or constructive trust without compliance with
applicable trust law.






	48.	 	Provisions in the Credit Agreement requiring the Borrower to perform its obligations under,
or to cause any other person to perform its obligations under, or stating that any action will
be taken as provided in or in accordance with, any other agreement.






	49.	 	Provisions, if any, which are contrary to the public policy of any jurisdiction.






	50.	 	Confession of judgment provisions.






	51.	 	Provisions that attempt to change or waive rules of evidence or fix the method or quantum of
proof to be applied in litigation or similar proceedings.






	52.	 	Provisions that provide for the appointment of a receiver.






	53.	 	Provisions relating to the application of insurance proceeds and condemnation awards.






	54.	 	Provisions of the Credit Agreement insofar as they authorize you to set off and apply any
deposits at any time held, and any other indebtedness at any time owing, by you to or for the
account of the Borrower.





D-2









 





EXHIBIT B




FORM OF

ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Credit Agreement dated as of [     ], 2010 (as the same may be
amended, supplemented or otherwise modified, renewed or replaced from time to time, the “Credit
Agreement”), among WYNDHAM WORLDWIDE CORPORATION (the “Borrower”), the Lenders referred
to therein, the Co-Documentation Agents, and Syndication Agent named therein and Bank of America,
N.A., as Administrative Agent for the Lenders. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.




          The Assignor identified on Schedule l hereto (the “Assignor”) and the Assignee
identified on Schedule l hereto (the “Assignee”) agree as follows:



1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations
under the Credit Agreement with respect to (a) its Revolving Commitment under the Credit Agreement
and its Revolving Credit Loans and/or (b) the Competitive Loan(s) at the time owing to it, in
either case, as are set forth on Schedule 1 hereto in the amount(s) as are set forth on Schedule 1
hereto, provided, however, it is expressly understood and agreed that (i) the
Assignor is not assigning to the Assignee and the Assignor shall retain (A) all of the Assignor’s
rights under Section 2.17 of the Credit Agreement with respect to any cost, reduction or payment
incurred or made prior to the Effective Date, including without limitation the rights to
indemnification and to reimbursement for taxes, costs and expenses and (B) any and all amounts paid
to the Assignor prior to the Effective Date and (ii) both Assignor and Assignee shall be entitled
to the benefits of Sections 10.4 and 10.5 of the Credit Agreement.



2. The Assignor (a) makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with the Credit Agreement
or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Fundamental Documents or any other instrument or document furnished pursuant thereto,
other than that it is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim and (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition of the Borrower or
the performance or observance by the Borrower of any of its obligations under the Credit Agreement
or any other Fundamental Document or any other instrument or document furnished pursuant hereto or
thereto.



3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received a copy of the Credit Agreement,






 









 








2 



together with copies of the most recent financial statements delivered pursuant to Sections 5.1(a)
and 5.1(b) thereof (or if none of such financial statements shall have then been delivered, then
copies of the financial statements referred to in Section 3.4 thereof) and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and without reliance upon
the Assignor, the Administrative Agent or any Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement; (d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and discretion under the
Fundamental Documents as are delegated to the Administrative Agent by the terms thereof, together
with such powers as are incidental thereto; (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender; and (f) if the
Assignee is organized under the laws of a jurisdiction outside the United States, attaches the
forms prescribed by the Internal Revenue Service of the United States certifying as to the
Assignee’s exemption from United States withholding taxes with respect to all payments to be made
to the Assignee under the Credit Agreement, or such other documents as are necessary to indicate
that all such payments are subject to such tax at a rate reduced by an applicable tax treaty.



4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to
Section 10.3 of the Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date
of acceptance and recording by the Administrative Agent) of the executed Assignment and Acceptance.



5. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between themselves.



6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Fundamental Documents and shall be bound by the provisions
thereof and (b) the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit Agreement.



7. This Assignment and Acceptance shall be governed by and construed in accordance with the laws of
the State of New York.







 









 








3 



8. This Assignment and Acceptance may be executed in counterparts, each of which shall be deemed to
constitute an original, but all of which when taken together shall constitute one and the same
instrument.




          IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.




 









 





Schedule 1




to Assignment and Acceptance with respect to

the Credit Agreement dated as of [ ], 2010, among WYNDHAM WORLDWIDE

CORPORATION (the “Borrower”), the Lenders referred to therein, the Co-Documentation Agents,

the Syndication Agent named therein and Bank of America, N.A., as Administrative Agent


Legal Name of Assignor:                     



Legal Name of Assignee:                     



Effective Date of Assignment:                     




IF THE ASSIGNOR IS ASSIGNING ITS

REVOLVING COMMITMENT AND ITS REVOLVING CREDIT LOANS




	 	 	 	 	 

	Assignor’s Revolving Commitment (without giving
effect to any assignments thereof which have not yet
become effective):
	 	$	 	 
	 
	 	 	 
	 
	The outstanding balance of Revolving Credit Loans owing
to Assignor (unreduced by any assignments thereof which
have not yet become effective):
	 	$	 	 
	 
	 	 	 
	 
	The Assignor’s pro rata share of the L/C Exposure
(unreduced by any assignments thereof which have not yet
become effective):
	 	$	 	 
	 
	 	 	 
	 
	Amount of the Assignor’s Revolving Commitment Assigned
(including a proportionate share of the Revolving Credit
Loans owing to Assignor, the Revolving Credit Notes held
by it and its rights and obligations with regard to
Letters of Credit); must be $5,000,000 or more):
	 	$	 	 
	 
	 	 	 





 









 






IF THE ASSIGNOR IS ASSIGNING ITS

COMPETITIVE LOANS




	 	 	 	 	 

	The outstanding balance of Competitive Loans owed to
Assignor (unreduced by any assignments thereof which
have not yet become effective):
	 	$	 	 
	 
	 	 	 
	 
	The Competitive Loans being assigned hereby:
	 	 	 	 
	 
	(i) Principal Amount:
	 	$	 	 
	 
	 	 	 
	 
	(ii) Interest Rate Type:
	 	 	 	 
	 
	 	 	 
	 
	(iii) Interest Period and last day thereof:
	 	 	 	 
	 
	 	 	 
	 
	(iv) Amount of such Loan being assigned

(must be $5,000,000 or more)
	 	$	 	 
	 
	 	 	 





Accepted:




	 	 	 	 	 	 	 	 	 	 	 

	BANK OF AMERICA, N.A., as
Administrative Agent	 	 	 	                    , as Assignor	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 
	 	Name:
	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	                    , as Assignee	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Consented to:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WYNDHAM WORLDWIDE CORPORATION	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 







 












 





EXHIBIT C




FORM OF

COMPLIANCE CERTIFICATE




     This Compliance Certificate is delivered pursuant to Section 5.1(c) of the Credit Agreement
dated as of [    ], 2010 (as the same may be amended, supplemented or otherwise modified,
renewed or replaced from time to time, the “Credit Agreement”), among WYNDHAM WORLDWIDE
CORPORATION (the “Borrower”), the Lenders referred to therein, the Co-Documentation Agents,
and Syndication Agent named therein and Bank of America, N.A., as Administrative Agent for the
Lenders. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.



     1. I am the duly elected, qualified and acting [Chief Financial Officer] of the Borrower.



     2. I have reviewed and am familiar with the contents of this Compliance Certificate.



     3. I have reviewed the terms of the Credit Agreement and the Fundamental Documents and have
made or caused to be made under my supervision, a review in reasonable detail of the transactions
and condition of the Borrower during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the “Financial Statements”). Such review did not
disclose the existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this Compliance
Certificate, of any condition or event which constitutes a Default or Event of Default[, except as
set forth below].



     4. Attached hereto as Attachment 2 are the computations showing compliance with the
covenants set forth in Section 6.5 and 6.6 of the Credit Agreement.



     The foregoing certifications, together with the computations and comparisons set forth in the
attachment hereto and the financial statements attached to this Compliance Certificate in support
hereof, are made and delivered this ___day of                     ,                      pursuant to Section 5.1(c) of
the Credit Agreement.



     IN WITNESS WHEREOF, I have executed this Compliance Certificate this                      day of ___, 201_.



	 	 	 	 	 

	 	 	WYNDHAM WORLDWIDE CORPORATION
	 
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 









 






Attachment 1

to Compliance Certificate




[Attach Financial Statements]








 









 








Attachment 2

to Compliance Certificate




     The information described herein is as of                     , ___, and pertains to the period from
                    , ___to                                          ___, ___.



     [Set forth Covenant Calculations]



 









 





EXHIBIT D-1




FORM OF

COMPETITIVE BID REQUEST




Bank of America, N.A., as Administrative Agent

for the Lenders referred to below

[            ]

[            ]

Attention:                                                    [Date]



Ladies and Gentlemen:




     The undersigned, Wyndham Worldwide Corporation (the “Borrower”), refers to the Credit
Agreement dated as of [    ], 2010 (as the same may be amended, supplemented or otherwise
modified, renewed or replaced from time to time, the “Credit Agreement”), among the
Borrower, the Lenders referred to therein, the Co-Documentation Agents, and Syndication Agent named
therein and Bank of America, N.A., as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.7(a) of the Credit Agreement that it
requests a Competitive Borrowing under the Credit Agreement and in that connection sets forth below
the terms on which such Competitive Borrowing is requested to be made:




	 	 	 	 	 	 	 

	(A)	 	Date of the Competitive Borrowing (which
is a Business Day)
	 	 	 	 
	 	 	 
	 	 	 	 
	(B)	 	Principal Amount of the Competitive Borrowing1
	 	$	 	 
	 	 	 
	 	 	 	 
	(C)	 	Interest Rate Type2 of the Competitive Borrowing
	 	 	 	 
	 	 	 
	 	 	 	 
	(D)	 	Interest Period with respect to the
Competitive Borrowing and the last day of such
Interest Period3
	 	 	 	 








 




			
	1	 	Shall not be less than $10,000,000 (and must
be in an integral multiple of $5,000,000) nor greater than the Total Revolving
Commitment then available.
	 
	2	 	LIBOR Loan or Fixed Rate Loan.
	 
	3	 	Shall be subject to the definition of
“Interest Period” and shall not end later than the Maturity Date.




 









 






2 





	 	 	 	 	 	 	 

	(E)	 	Currency with respect to the Competitive
Borrowing
	 	 	                    	 
	 	 	 
	 	 	 	 
	(F)	 	Funding location of the Competitive Borrowing
[Local Competitive Loans only]
	 	 	                    	 






 









 





3 



     Upon acceptance of any or all of the Competitive Loans offered by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted that the conditions
to each Loan specified in Sections 4.2(b) and 4.2(c) of the Credit Agreement have been satisfied.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	WYNDHAM WORLDWIDE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







 











 





EXHIBIT D-2




FORM OF

COMPETITIVE BID INVITATION




	 	 	 
	[Name of Lender]
	 	 
	[Address]
	 	 
	 
	 	 
	Attention:

	 	[Date]





Ladies and Gentlemen:




          Reference is hereby made to the Credit Agreement dated as of [      ], 2010 (as the same
may be amended, supplemented or otherwise modified, renewed or replaced from time to time, the
“Credit Agreement”), among Wyndham Worldwide Corporation (the “Borrower”), the
Lenders referred to therein, the Co-Documentation Agents, and Syndication Agent named therein and
Bank of America, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit Agreement. The
Borrower made a Competitive Bid Request on ___, 201_, pursuant to Section 2.7(a) of the Credit
Agreement, and in that connection you are invited to submit a Competitive Bid by
[Date]/[Time].1 Your Competitive Bid must comply with Section 2.7(b) of the Credit
Agreement and the terms set forth below on which the Competitive Bid Request was made:




	 	 	 	 	 	 	 
	(A)	 	Date of the Competitive Borrowing
	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(B)	 	Principal Amount of the Competitive Borrowing
	 	$	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(C)	 	Interest Rate Type of the
Competitive Borrowing
	 	 	 	 
	 	 	 
	 	 	 







 




			
	1	 	The Competitive Bid must be received by the
Administrative Agent via telecopier (i) in the case of a request for a LIBOR
Competitive Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before a proposed Competitive Borrowing, (ii) in the case of a
request for a Local Fixed Rate Borrowing, not later than 10:00 a.m., New York
City time, four Business Day before the proposed Competitive Borrowing and
(iii) in the case of a request for a Domestic Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, three Business Days before the proposed
Competitive Borrowing.




 









 










 2






	 	 	 	 	 	 	 
	(D)	 	Interest Period with respect to the Competitive Borrowing and the
last day of such Interest Period
	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(E)	 	Currency with respect to the Competitive Borrowing
	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(F)	 	Funding location of the Competitive Borrowing [Local Competitive
Loans only]
	 	 	 	 
	 	 	 
	 	 	 





 









 





 3




	 	 	 	 	 
	 	Very truly yours,




BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




 









 





EXHIBIT D-3




FORM OF

COMPETITIVE BID




Bank of America, N.A. as Administrative Agent

  for the Lenders referred to below

[      ]

[      ]




Attention:                                                             
          [Date]




Ladies and Gentlemen:




          The undersigned, [Name of Lender], refers to the Credit Agreement dated as of [ ], 2010
(as the same may be amended, supplemented or otherwise modified, renewed or replaced from time to
time, the “Credit Agreement”), among Wyndham Worldwide Corporation (the
“Borrower”), the Lenders referred to therein, the Co-Documentation Agents, and Syndication
Agent named therein and Bank of America, N.A., as Administrative Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby makes a Competitive Bid pursuant to Section 2.7(b) of the
Credit Agreement in response to the Competitive Bid Request made by the Borrower on                     , 201_,
and in that connection sets forth below the terms on which such Competitive Bid is made:




	 	 	 	 	 	 	 
	[(A)	 	Principal amount of the Competitive Loan(s) that the
undersigned is willing to make1
	 	$	]	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(B)	 	Competitive Bid Rate(s)2
at which the undersigned is willing to make the Competitive Loan(s)
	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	(C)	 	Interest Period(s) with respect to the Competitive Loan(s)
	 	 	]	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	 	 	and the last day of such Interest Period(s)
	 	 	]	 
	 	 	 
	 	 	 







 




			
	1	 	Shall not be less than $10,000,000 nor
greater than the requested Competitive Borrowing and shall be in an integral
multiple of $5,000,000. Multiple bids will be accepted by the Administrative
Agent.
	 
	2	 	i.e., + or - .___%, in the case of a LIBOR
Loan (such percentage to be added to, or subtracted from, LIBOR in order to
determine the applicable interest rate) or ___%, in the case of a Fixed Rate
Loan.




 









 










 2




	 	 	 	 	 	 	 
	[(D)	 	Funding Office Contact Information
[Local Competitive Loans only]
	 	 	]	 
	 	 	 
	 	 	 





 









 






 3




          The undersigned hereby confirms that it shall, subject to the terms and conditions set
forth in the Credit Agreement, extend credit to the Borrower upon acceptance by the Borrower of
this bid in accordance with Section 2.7(d) of the Credit Agreement.




	 	 	 	 	 
	 	Very truly yours,




[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	  	Name: 	 
	 	  	Title: 	 
	 




 









 





EXHIBIT D-4




FORM OF

COMPETITIVE BID ACCEPT/REJECT LETTER





[Date]



Bank of America, N.A., as Administrative Agent

  for the Lenders referred to below




[       ]

[       ]




Attention:                                         




Ladies and Gentlemen:




          The undersigned, Wyndham Worldwide Corporation (“we” or the “Borrower”),
refers to the Credit Agreement dated as of [     ], 2010 (as the same may be amended,
supplemented or otherwise modified, renewed or replaced from time to time, the “Credit
Agreement”), among the Borrower, the Lenders referred to therein, the Co-Documentation Agents
and Syndication Agent named therein and Bank of America, N.A., as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.




          In accordance with Section 2.7(c) of the Credit Agreement, we have been notified of the
Competitive Bids made in connection with our Competitive Bid Request dated                     , 201___and in
accordance with Section 2.7(d) of the Credit Agreement, we hereby accept the following bids for
Competitive Loans(s) with a maturity on [date]:




	 	 	 	 	 
	 	 	Competitive Bid Rate (i.e.	 	 
	[Principal Amount	 	Fixed Rate/Margin)	 	Lender
	$

	 	[%]/[+/-. %]	 	 
	$
	 	 	 	 
	 	 	 	 	 
	Total $___]
	 	 	 	 






We hereby reject the following bids:




	 	 	 	 	 
	 	 	Competitive Bid Rate (i.e. Fixed	 	 
	[Principal Amount	 	Rate/Margin)	 	Lender
	$

	 	[%]/[+/-. %]	 	 
	$
	 	 	 	 
	 	 	 	 	 
	Total $___]
	 	 	 	 






 









 






 2




     The total amount of the bids accepted ($                     ) should be deposited on [date] in account
number                     , maintained at Bank of America, N.A.



	 	 	 	 	 
	 	Very truly yours,




[WYNDHAM WORLDWIDE CORPORATION]

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




 











 





EXHIBIT E




FORM OF

REVOLVING CREDIT BORROWING REQUEST




Bank of America, N.A., as Administrative Agent

     for the Lenders referred to below,

[     ]

[     ]




Attention:                                              [Date]



Ladies and Gentlemen:




          The undersigned, [Wyndham Worldwide Corporation (the “Borrower”)], refers to Credit
Agreement dated as of [     ], 2010 (as the same may be amended, supplemented or otherwise
modified, renewed or replaced from time to time, the “Credit Agreement”), among the
Borrower, the Lenders referred to therein, the Co-Documentation Agents, and Syndication Agent named
therein and Bank of America, N.A., as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
[The Borrower] hereby gives you notice pursuant to Section 2.3 of the Credit Agreement that it
requests a Revolving Credit Borrowing under the Credit Agreement and in that connection sets forth
below the terms on which such Revolving Credit Borrowing is requested to be made:




	 	 	 	 	 

	(A)

	 	Date of the Revolving Credit
Borrowing (which is a Business Day)
	 	 
	 
	 	 	 	 
	(B)

	 	Principal Amount of the
Revolving Credit Borrowing1
	$	 
	 
	 	 	 	 
	(C)

	 	Interest Rate Type of the
Revolving Credit Borrowing2
	 	 
	 
	 	 	 	 
	(D)

	 	Interest Period(s) with respect to
the LIBOR Loan(s) and the last day of
such Interest Period(s)3
	 	 








 




			
	1	 	Shall (a) in the case of ABR Loans, be in an
integral multiple of $500,000 and not less than $5,000,000, (b) in the case of
LIBOR Loans, be in an integral multiple of $1,000,000 and not less than
$5,000,000 and (c) not be greater than the Total Commitment then available.
	 
	2	 	LIBOR Borrowing or ABR Borrowing.










 



 






 2





	(E)	 	Currency with respect to the
Revolving Credit Borrowing4





          Upon acceptance of the Revolving Credit Loans to be made by the Lenders in response to this
request, the Borrower shall be deemed to have represented and warranted that the conditions to each
Loan specified in Sections 4.2(b) and 4.2(c) [and 4.2(d)] of the Credit Agreement have been
satisfied.




	 	 	 	 	 
	 	Very truly yours,



[WYNDHAM WORLDWIDE CORPORATION]

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	3	 	Shall be subject to the definition of
“Interest Period” and shall not end later than the Maturity Date. [Complete
only in the case where LIBOR Loan(s) are being requested.]
	 
	4	 	Dollars or any Optional Currency.










 



 






EXHIBIT F




FORM OF

JOINDER AGREEMENT




          JOINDER AGREEMENT, dated as of ___, 201_, made by each signatory hereto (each a “New
Subsidiary Borrower”), in favor of Bank of America, N.A., as administrative agent (in such
capacity, the “Administrative Agent”) for the Lenders referred to in the Credit Agreement
dated as of [     ], 2010 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among Wyndham Worldwide Corporation (the “Borrower” or
“Wyndham Worldwide”), the Lenders referred to therein, the Co-Documentation Agents, and
Syndication Agent named therein and the Administrative Agent.




W I T N E S S E T H:




          WHEREAS, the parties to this Joinder Agreement wish to add the New Subsidiary Borrower to the
Credit Agreement in the manner hereinafter set forth; and




          WHEREAS, this Joinder Agreement is entered into pursuant to subsection 10.9(b)(i) of the
Credit Agreement;




          NOW, THEREFORE, in consideration of the premises, the parties hereto hereby agree as follows:




          1. The New Subsidiary Borrower, hereby acknowledges that it has received and reviewed a copy
of the Credit Agreement, and acknowledges and agrees to:




join the Credit Agreement as a Subsidiary Borrower, as indicated with its signature below; be bound
by all covenants, agreements and acknowledgments attributable to a Subsidiary Borrower in the
Credit Agreement; and perform all obligations and duties required of it by the Credit Agreement.




          2. The New Subsidiary Borrower represents and warrants that the representations and
warranties contained Section 3 of the Credit Agreement (other than Section 3.4 and 3.5) as they
relate to such New Subsidiary Borrower or which are contained in any certificate furnished by or on
behalf of such New Subsidiary Borrower are true and correct on the date hereof.




          3. The address, taxpayer identification number and jurisdiction of incorporation of each of
the New Subsidiary Borrower is set forth in Annex I to this Joinder Agreement.




          4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.











 



 


 2




          IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly
executed and delivered by its proper and duly authorized officer as of the day and year first above
written.




	 	 	 	 	 
	 	[NEW SUBSIDIARY BORROWER],

as a Subsidiary Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACKNOWLEDGED AND AGREED TO:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 










 



 


EXHIBIT G-1




FORM OF

NEW REVOLVING LENDER SUPPLEMENT




     Reference is made to the Credit Agreement dated as of [     ], 2010 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Wyndham Worldwide
Corporation (the “Borrower”), the Lenders referred to therein, the Co-Documentation Agents,
and Syndication Agent named therein and Bank of America, N.A., as Administrative Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.



     The New Lender identified on Schedule l hereto (the “New Lender”), the Administrative
Agent and the Borrower agree as follows:



     1. The New Lender hereby irrevocably makes a Revolving Commitment available to the Borrower in
the amount set forth on Schedule 1 hereto (the “New Commitment”) pursuant to Section
2.14(e) of the Credit Agreement, as applicable. From and after the Effective Date (as defined
below), the New Lender will be a Lender under the Credit Agreement with respect to the New
Commitment.



     2. The Administrative Agent (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement; and (b) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any of its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto.



     3. The New Lender (a) represents and warrants that it is legally authorized to enter into this
New Revolving Lender Supplement; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 5.1 of
the Credit Agreement (or, if no such financial statements have been delivered, copies of the
financial statements delivered pursuant to Section 3.4 thereof) and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this New Revolving Lender Supplement; (c) agrees 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 deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any
other instrument or document furnished









 



 


 2



pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender.




          4. The effective date of this New Revolving Lender Supplement shall be the Effective Date of
the New Commitment described in Schedule 1 hereto (the “Effective Date”). Following the
execution of this New Revolving Lender Supplement by each of the New Lender and the Borrower, it
will be delivered to the Administrative Agent for acceptance and recording by it pursuant to the
Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date of such acceptance
and recording by the Administrative Agent).




          5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the New Commitment (including payments of principal,
interest, fees and other amounts) to the New Lender for amounts which have accrued on and
subsequent to the Effective Date.




          6. From and after the Effective Date, the New Lender shall be a party to the Credit Agreement
and, to the extent provided in this New Revolving Lender Supplement, have the rights and
obligations of a Lender thereunder and shall be bound by the provisions thereof.




          7. This New Revolving Lender Supplement shall be governed by and construed in accordance with
the laws of the State of New York.




          IN WITNESS WHEREOF, the parties hereto have caused this New Revolving Lender Supplement to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.











 



 




Schedule 1

to New Revolving Lender Supplement




	 	 	 

	Name of New Lender:
	 	 
	 

	 	 





	 	 	 

	Effective Date of New Commitment:
	 	 
	 

	 	 





	 	 	 

	Principal Amount of New Commitment: $
	 	 
	 

	 	 





	 	 	 	 	 	 	 	 	 	 	 

	[NAME OF NEW LENDER]	 	 	 	WYNDHAM WORLDWIDE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 	 	Name:
	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 






Accepted:




BANK OF AMERICA, N.A.,

  as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




 











 





EXHIBIT G-2




FORM OF

INCREMENTAL FACILITY SUPPLEMENT1




          Reference is made to the Credit Agreement dated as of [     ], 2010 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Wyndham Worldwide
Corporation (the “Borrower”), the Lenders referred to therein, the Co-Documentation Agents,
and Syndication Agent named therein and Bank of America, N.A., as Administrative Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.




          The Incremental Lender identified on Schedule l hereto (the “Incremental Lender”), the
Administrative Agent and the Borrower agree as follows:




          1. The Incremental Lender hereby irrevocably makes a commitment to the Incremental Facility
described on Schedule I hereto (the “Incremental Facility”) in the amount set forth on
Schedule 1 hereto (its “Incremental Commitment”) pursuant to Section 2.28 of the Credit
Agreement, as applicable. From and after the Effective Date (as defined below), the Incremental
Lender will be a Lender under the Credit Agreement with respect to the Incremental Commitment.




          2. The Administrative Agent (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement; and (b) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any of its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto.




          3. The Incremental Lender (a) represents and warrants that it is legally authorized to enter
into this Incremental Facility Supplement; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to
Section 5.1 of the Credit Agreement (or, if no such financial statements have been delivered,
copies of the financial statements delivered pursuant to Section 3.4 thereof) and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Incremental Facility Supplement; (c) agrees 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 deem appropriate at the time, continue to






 




			
	1	 	This Supplement may be revised as appropriate
to provide for multiple Incremental Lenders signing this Agreement.




 









 










 2



make its own credit decisions in taking or not taking action under the Credit Agreement or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement or any other instrument or document furnished pursuant hereto
or thereto as are delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender.




          4. The effective date of this Incremental Facility Supplement shall be the Effective Date of
the Incremental Facility described in Schedule 1 hereto (the “Effective Date”). Following
the execution of this Incremental Facility Supplement by each of the Incremental Lender and the
Borrower, it will be delivered to the Administrative Agent for acceptance and recording by it
pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agent).




          5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Incremental Commitment (including payments of
principal, interest, fees and other amounts) to the Incremental Lender for amounts which have
accrued on and subsequent to the Effective Date.




          6. From and after the Effective Date, the Incremental Lender shall be a party to the Credit
Agreement and, to the extent provided in this Incremental Facility Supplement, have the rights and
obligations of a Lender thereunder and shall be bound by the provisions thereof.




          7. This Incremental Facility Supplement shall be governed by and construed in accordance with
the laws of the State of New York.




          IN WITNESS WHEREOF, the parties hereto have caused this Incremental Facility Supplement to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.






 









 








Schedule 1

to Incremental Facility Supplement




	 	 	 

	Name of Incremental Lender:
	 	 
	 

	 	 





	 	 	 

	Effective Date of Incremental Facility:
	 	 
	 

	 	 





	 	 	 

	Principal Amount of Incremental Commitment: $
	 	 
	 

	 	 





Terms of Incremental Facility:



[Maturity]



[Interest Rate/Pricing]



[Other Terms]




	 	 	 	 	 	 	 	 	 	 	 

	[NAME OF INCREMENTAL LENDER]	 	 	 	WYNDHAM WORLDWIDE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 
	 	Name:
	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accepted:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BANK OF AMERICA, N.A.,

     as Administrative Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT H




FORM OF

COMMITMENT INCREASE SUPPLEMENT




          Reference is made to the Credit Agreement dated as of [     ], 2010 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Wyndham Worldwide
Corporation (the “Borrower”), the Lenders referred to therein, the Co-Documentation Agents,
and Syndication Agent named therein and Bank of America, N.A., as Administrative Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.




          The Increasing Lender identified on Schedule l hereto (the “Increasing Lender”), the
Administrative Agent and the Borrower agree as follows:




          1. The Increasing Lender hereby irrevocably increases its Revolving Commitment to the Borrower
by the amount set forth on Schedule 1 hereto (the “Increased Commitment”) pursuant to
Section 2.14(f) of the Credit Agreement. From and after the Effective Date (as defined below), the
Increasing Lender will be a Lender under the Credit Agreement with respect to the Increased
Commitment as well as its existing Revolving Commitment under the Credit Agreement.




          2. The Administrative Agent (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement; and (b) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any of its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto.




          3. The Increasing Lender (a) represents and warrants that it is legally authorized to enter
into this Commitment Increase Supplement; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to
Section 5.1 of the Credit Agreement (or, if no such financial statements have been delivered,
copies of the financial statements delivered pursuant to Section 3.4 thereof) and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Commitment Increase Supplement; (c) agrees 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 deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers






 









 








 2



and discretion under the Credit Agreement or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender.




          4. The effective date of this Commitment Increase Supplement shall be the Effective Date of
the Increased Commitment described in Schedule 1 hereto (the “Effective Date”). Following
the execution of this Commitment Increase Supplement by each of the Increasing Lender and the
Borrower, it will be delivered to the Administrative Agent for acceptance and recording by it
pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agent).




          5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Increased Commitment (including payments of
principal, interest, fees and other amounts) to the Increasing Lender for amounts which have
accrued on and subsequent to the Effective Date.




          6. From and after the Effective Date, the Increasing Lender shall be a party to the Credit
Agreement and, to the extent provided in this Commitment Increase Supplement, have the rights and
obligations of a Lender thereunder and shall be bound by the provisions thereof.




          7. This Commitment Increase Supplement shall be governed by and construed in accordance with
the laws of the State of New York.




          IN WITNESS WHEREOF, the parties hereto have caused this Commitment Increase Supplement to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.






 









 








Schedule 1

to Commitment Increase Supplement




	 	 	 

	Name of Increasing Lender:
	 	 
	 

	 	 





	 	 	 

	Effective Date of Increased Commitment:
	 	 
	 

	 	 





	 	 	 

	Principal
	 	Total Amount of Revolving Commitment
	Amount of
	 	of Increasing Lender
	Increased Commitment:
	 	(including Increased Commitment):
	 
	 	 
	 	 	 
	$                                        
	 	$                                        






	 	 	 	 	 	 	 	 	 	 	 

	[NAME OF INCREASING LENDER]	 	 	 	WYNDHAM WORLDWIDE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 
	 	Name:
	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accepted:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BANK OF AMERICA, N.A.,

as Administrative Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 	 	 	 	 	 	 
	Title: