exv10w1






Exhibit 10.1






 





THIRD AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of August 23, 2006



As Amended and Restated as of October 22, 2010,



among



TRAVELPORT LLC (F/K/A TRAVELPORT INC.),

as Borrower,



TRAVELPORT LIMITED (F/K/A TDS INVESTOR (BERMUDA) LTD.),

as Holdings,



WALTONVILLE LIMITED,

as Intermediate Parent,



UBS AG, STAMFORD BRANCH,

as Administrative Agent and L/C Issuer,



UBS LOAN FINANCE LLC,

as Swing Line Lender,



THE OTHER LENDERS PARTY HERETO,



CREDIT SUISSE SECURITIES (USA) LLC,

as Syndication Agent,



and



LEHMAN BROTHERS INC.,

J.P. MORGAN SECURITIES INC. and

GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Co-Documentation Agents



 





UBS SECURITIES LLC and

CREDIT SUISSE SECURITIES (USA) LLC,

as Co-Lead Arrangers



UBS SECURITIES LLC,



CREDIT SUISSE SECURITIES (USA) LLC,

LEHMAN BROTHERS INC.,

J.P. MORGAN SECURITIES INC. and

GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Joint Bookrunners



 




Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005



 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	Definitions and Accounting Terms

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	2	 
	SECTION 1.02. Other Interpretive Provisions
	 	 	62	 
	SECTION 1.03. Accounting Terms
	 	 	63	 
	SECTION 1.04. Rounding
	 	 	63	 
	SECTION 1.05. References to Agreements, Laws, Etc
	 	 	63	 
	SECTION 1.06. Times of Day
	 	 	64	 
	SECTION 1.07. Timing of Payment or Performance
	 	 	64	 
	SECTION 1.08. Currency Equivalents Generally
	 	 	64	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Commitments and Credit Extensions

	 
	 	 	 	 
	SECTION 2.01. The Loans
	 	 	65	 
	SECTION 2.02. Borrowings, Conversions and Continuations of Loans
	 	 	68	 
	SECTION 2.03. Letters of Credit
	 	 	71	 
	SECTION 2.04. Swing Line Loans
	 	 	86	 
	SECTION 2.05. Prepayments
	 	 	89	 
	SECTION 2.06. Termination or Reduction of Commitments and Credit-Linked Deposits
	 	 	94	 
	SECTION 2.07. Repayment of Loans
	 	 	96	 
	SECTION 2.08. Interest
	 	 	98	 
	SECTION 2.09. Fees
	 	 	99	 
	SECTION 2.10. Computation of Interest and Fees
	 	 	100	 
	SECTION 2.11. Evidence of Indebtedness
	 	 	100	 
	SECTION 2.12. Payments Generally
	 	 	101	 
	SECTION 2.13. Sharing of Payments
	 	 	103	 
	SECTION 2.14. Incremental Credit Extensions
	 	 	104	 
	SECTION 2.15. Currency Equivalents
	 	 	106	 
	SECTION 2.16. Defaulting Lenders
	 	 	106	 
	SECTION 2.17. Revolving Credit Loan Modification Offers
	 	 	107	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Taxes, Increased Costs Protection and Illegality

	 
	 	 	 	 
	SECTION 3.01. Taxes
	 	 	108	 
	SECTION 3.02. Illegality
	 	 	111	 






i









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.03. Inability to Determine Rates
	 	 	112	 
	SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate
Loans
	 	 	112	 
	SECTION 3.05. Funding Losses
	 	 	114	 
	SECTION 3.06. Matters Applicable to All Requests for Compensation
	 	 	114	 
	SECTION 3.07. Replacement of Lenders under Certain Circumstances
	 	 	116	 
	SECTION 3.08. Survival
	 	 	117	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions Precedent to Effectiveness and Credit Extensions

	 
	 	 	 	 
	SECTION 4.01. [Reserved.]
	 	 	117	 
	SECTION 4.02. Third Amendment and Restatement Effective Date
	 	 	117	 
	SECTION 4.03. Conditions to All Credit Extensions
	 	 	117	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 5.01. Existence, Qualification and Power; Compliance with Laws
	 	 	118	 
	SECTION 5.02. Authorization; No Contravention
	 	 	118	 
	SECTION 5.03. Governmental Authorization; Other Consents
	 	 	119	 
	SECTION 5.04. Binding Effect
	 	 	119	 
	SECTION 5.05. Financial Statements; No Material Adverse Effect
	 	 	119	 
	SECTION 5.06. Litigation
	 	 	121	 
	SECTION 5.07. No Default
	 	 	121	 
	SECTION 5.08. Ownership of Property; Liens
	 	 	121	 
	SECTION 5.09. Environmental Compliance
	 	 	121	 
	SECTION 5.10. Taxes
	 	 	122	 
	SECTION 5.11. ERISA Compliance
	 	 	123	 
	SECTION 5.12. Subsidiaries; Equity Interests
	 	 	123	 
	SECTION 5.13. Margin Regulations; Investment Company Act
	 	 	124	 
	SECTION 5.14. Disclosure
	 	 	124	 
	SECTION 5.15. Intellectual Property; Licenses, Etc
	 	 	124	 
	SECTION 5.16. Solvency
	 	 	124	 
	SECTION 5.17. Subordination of Junior Financing
	 	 	125	 
	SECTION 5.18. Labor Matters
	 	 	125	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 6.01. Financial Statements
	 	 	125	 
	SECTION 6.02. Certificates; Other Information
	 	 	126	 
	SECTION 6.03. Notices
	 	 	128	 
	SECTION 6.04. Payment of Obligations
	 	 	128	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 6.05. Preservation of Existence, Etc
	 	 	128	 
	SECTION 6.06. Maintenance of Properties
	 	 	129	 
	SECTION 6.07. Maintenance of Insurance
	 	 	129	 
	SECTION 6.08. Compliance with Laws
	 	 	129	 
	SECTION 6.09. Books and Records
	 	 	129	 
	SECTION 6.10. Inspection Rights
	 	 	129	 
	SECTION 6.11. Covenant to Guarantee Obligations and Give Security
	 	 	130	 
	SECTION 6.12. Compliance with Environmental Laws
	 	 	132	 
	SECTION 6.13. Further Assurances and Post-Closing Conditions
	 	 	132	 
	SECTION 6.14. Designation of Subsidiaries
	 	 	133	 
	SECTION 6.15. Flood Insurance
	 	 	134	 
	SECTION 6.16. Orbitz Indebtedness
	 	 	134	 
	SECTION 6.17. Post-Closing Matters
	 	 	134	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Negative Covenants

	 
	 	 	 	 
	SECTION 7.01. Liens
	 	 	135	 
	SECTION 7.02. Investments
	 	 	139	 
	SECTION 7.03. Indebtedness
	 	 	143	 
	SECTION 7.04. Fundamental Changes
	 	 	146	 
	SECTION 7.05. Dispositions
	 	 	148	 
	SECTION 7.06. Restricted Payments
	 	 	151	 
	SECTION 7.07. Change in Nature of Business
	 	 	154	 
	SECTION 7.08. Transactions with Affiliates
	 	 	154	 
	SECTION 7.09. Burdensome Agreements
	 	 	155	 
	SECTION 7.10. Use of Proceeds
	 	 	156	 
	SECTION 7.11. Maximum Total Leverage Ratio
	 	 	156	 
	SECTION 7.12. Accounting Changes
	 	 	156	 
	SECTION 7.13. Prepayments, Etc. of Indebtedness
	 	 	156	 
	SECTION 7.14. Equity Interests of the Borrower and Restricted Subsidiaries
	 	 	157	 
	SECTION 7.15. Holding Company; Foreign Subsidiaries
	 	 	157	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	Events of Default and Remedies

	 
	 	 	 	 
	SECTION 8.01. Events of Default
	 	 	157	 
	SECTION 8.02. Remedies Upon Event of Default
	 	 	160	 
	SECTION 8.03. Exclusion of Immaterial Subsidiaries
	 	 	160	 
	SECTION 8.04. Application of Funds
	 	 	161	 
	SECTION 8.05. Borrower’s Right to Cure
	 	 	162	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE IX

	 
	 	 	 	 
	Administrative Agent and Other Agents

	 
	 	 	 	 
	SECTION 9.01. Appointment and Authorization of Agents
	 	 	162	 
	SECTION 9.02. Delegation of Duties
	 	 	164	 
	SECTION 9.03. Liability of Agents
	 	 	164	 
	SECTION 9.04. Reliance by Agents
	 	 	164	 
	SECTION 9.05. Notice of Default
	 	 	165	 
	SECTION 9.06. Credit Decision; Disclosure of Information by Agents
	 	 	165	 
	SECTION 9.07. Indemnification of Agents
	 	 	166	 
	SECTION 9.08. Agents in their Individual Capacities
	 	 	166	 
	SECTION 9.09. Successor Agents
	 	 	167	 
	SECTION 9.10. Administrative Agent May File Proofs of Claim
	 	 	168	 
	SECTION 9.11. Collateral and Guaranty Matters
	 	 	168	 
	SECTION 9.12. Other Agents; Arrangers and Managers
	 	 	170	 
	SECTION 9.13. Appointment of Supplemental Administrative Agents
	 	 	170	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 10.01. Amendments, Etc
	 	 	171	 
	SECTION 10.02. Notices and Other Communications; Facsimile Copies
	 	 	173	 
	SECTION 10.03. No Waiver; Cumulative Remedies
	 	 	174	 
	SECTION 10.04. Attorney Costs, Expenses and Taxes
	 	 	175	 
	SECTION 10.05. Indemnification by the Borrower
	 	 	175	 
	SECTION 10.06. Payments Set Aside
	 	 	176	 
	SECTION 10.07. Successors and Assigns
	 	 	177	 
	SECTION 10.08. Confidentiality
	 	 	181	 
	SECTION 10.09. Setoff
	 	 	182	 
	SECTION 10.10. Interest Rate Limitation
	 	 	183	 
	SECTION 10.11. Counterparts
	 	 	183	 
	SECTION 10.12. Integration
	 	 	183	 
	SECTION 10.13. Survival of Representations and Warranties
	 	 	183	 
	SECTION 10.14. Severability
	 	 	184	 
	SECTION 10.15. Tax Forms
	 	 	184	 
	SECTION 10.16. GOVERNING LAW
	 	 	186	 
	SECTION 10.17. WAIVER OF RIGHT TO TRIAL BY JURY
	 	 	186	 
	SECTION 10.18. Binding Effect
	 	 	187	 
	SECTION 10.19. Judgment Currency
	 	 	187	 
	SECTION 10.20. Lender Action
	 	 	187	 
	SECTION 10.21. USA PATRIOT Act
	 	 	188	 
	SECTION 10.22. Agent for Service of Process
	 	 	188	 






iv









 






	 	 	 	 	 
	SCHEDULES	 	 
	 
	 	 	 	 
	 
	 	1.01A	 	[Reserved]
	 
	 	1.01B	 	Certain Security Interests and Guarantees
	 
	 	1.01C	 	Unrestricted Subsidiaries
	 
	 	1.01D	 	Mandatory Cost
	 
	 	1.01E	 	Existing Letters of Credit
	 
	 	1.01F	 	[Reserved]
	 
	 	1.01G	 	Excluded Subsidiaries
	 
	 	2.01	 	Commitments
	 
	 	2.03(a)(iii)(B)	 	Certain Letters of Credit
	 
	 	5.05	 	Certain Liabilities
	 
	 	5.09(b)	 	Environmental Matters
	 
	 	5.09(d)	 	Hazardous Materials
	 
	 	5.10	 	Taxes
	 
	 	5.11(a)	 	ERISA Compliance
	 
	 	5.12	 	Subsidiaries and Other Equity Investments
	 
	 	7.01(b)	 	Existing Liens
	 
	 	7.02(f)	 	Existing Investments
	 
	 	7.03(b)	 	Existing Indebtedness
	 
	 	7.04(f)	 	Permitted Subsidiary Fundamental Changes
	 
	 	7.05(k)	 	Dispositions
	 
	 	7.05(m)	 	Permitted Subsidiary Dispositions
	 
	 	7.08	 	Transactions with Affiliates
	 
	 	7.09	 	Existing Restrictions
	 
	 	10.02	 	Administrative Agent’s Office, Certain Addresses for Notices
	 
	 	 	 	 
	EXHIBITS	 	 
	 
	 	 	 	 
	Form of	 	 
	 
	 	A	 	Committed Loan Notice
	 
	 	B	 	Swing Line Loan Notice
	 
	 	C-1	 	[Reserved]
	 
	 	C-2	 	[Reserved]
	 
	 	C-3	 	[Reserved]
	 
	 	C-4	 	[Reserved]
	 
	 	C-5	 	[Reserved]
	 
	 	C-6	 	[Reserved]
	 
	 	D	 	Compliance Certificate
	 
	 	E	 	Assignment and Assumption
	 
	 	F	 	Guaranty
	 
	 	G	 	Security Agreement
	 
	 	H	 	[Reserved]
	 
	 	I	 	[Reserved]
	 
	 	J	 	Intellectual Property Security Agreement






v









 







     THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 23,
2006, as amended and restated as of October 22, 2010, among TRAVELPORT LLC
(F/K/A TRAVELPORT INC.), a Delaware limited liability company (the
“Borrower”), TRAVELPORT LIMITED (F/K/A TDS INVESTOR (BERMUDA) LTD.), a
company incorporated under the laws of Bermuda (“Holdings”), WALTONVILLE
LIMITED, a company incorporated under the laws of Gibraltar (“Intermediate
Parent”), UBS AG, STAMFORD BRANCH, as Administrative Agent, Collateral
Agent and L/C Issuer, UBS LOAN FINANCE LLC, as Swing Line Lender, each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), CREDIT SUISSE SECURITIES (USA) LLC, as
Syndication Agent, and LEHMAN BROTHERS INC., J.P. MORGAN SECURITIES INC.
and GOLDMAN SACHS CREDIT PARTNERS L.P., as Co-Documentation Agents.



PRELIMINARY STATEMENTS




          The Borrower, Holdings, Intermediate Parent, UBS AG, Stamford Branch, as Administrative Agent
and an L/C Issuer, UBS Loan Finance LLC, as Swing Line Lender, Credit Suisse Securities (USA) LLC,
as Syndication Agent, and Lehman Brothers Inc., Citicorp North America, Inc. and Deutsche Bank AG
New York Branch, as Co-Documentation Agents, and the lenders party thereto (the “Original Lenders”)
have previously entered into a Credit Agreement dated as of August 23, 2006 (the “Original Credit
Agreement”).



          The Original Credit Agreement was amended and restated as of January 29, 2007 (as so amended
and restated, the “First Amended and Restated Credit Agreement”) and further amended and restated
as of May 23, 2007 (as so amended and restated, and as amended thereafter but prior to the Third
Amendment and Restatement Effective Date, the “Second Amended and Restated Credit Agreement”).



          On the Third Amendment and Restatement Effective Date, (a) certain Existing Tranche B Dollar
Term Loans have been converted to Extended Tranche B Dollar Term Loans pursuant to the Third
Amendment and Restatement Agreement, and all other Existing Tranche B Dollar Term Loans have been
redesignated as Non-Extended Tranche B Dollar Term Loans, (b) certain Existing Euro Term Loans have
been converted to Extended Euro Term Loans pursuant to the Third Amendment and Restatement
Agreement, and all other Existing Euro Term Loans have been redesignated as Non-Extended Euro Term
Loans, (c) certain Existing Synthetic L/C Commitments have been converted to Extended Synthetic L/C
Commitments pursuant to the Third Amendment and Restatement Agreement (and, under such Commitments,
on the Third Amendment and Restatement Effective Date, the Extended Synthetic L/C Lenders made
Tranche S Term Loans with funds theretofore credited to their Existing Credit-Linked Deposits), and
all other Existing Synthetic L/C Commitments have been redesignated as



 









 




Non-Extended Synthetic L/C Commitments and (d) the Second Amended and Restated Credit
Agreement has been amended and restated in the form of this Agreement.




          The proceeds of the Existing Term Loans have been used for the purposes set forth in the
Original Credit Agreement or the Second Amended and Restated Credit Agreement, as applicable. The
proceeds of the Tranche S Term Loans made on the Third Amendment and Restatement Effective Date
have been deposited in the Tranche S Collateral Account to be applied as set forth herein. The
proceeds of Revolving Credit Loans made on or after the Third Amendment and Restatement Effective
Date will be used for working capital and other general corporate purposes of Holdings and its
Subsidiaries, including the financing of Permitted Acquisitions. Swing Line Loans and Letters of
Credit will be used for general corporate purposes of Holdings and its Subsidiaries.



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



ARTICLE I




Definitions and Accounting Terms



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



          “Accepting Revolving Credit Lenders” has the meaning assigned to such term in Section 2.17(a).



          “Acquired EBITDA” means, with respect to any Acquired Entity or Business for any period, the
amount for such period of Consolidated EBITDA of such Acquired Entity or Business (determined as if
references to Holdings, Borrower and the Restricted Subsidiaries in the definition of Consolidated
EBITDA were references to such Acquired Entity or Business and its Subsidiaries), all as determined
on a consolidated basis for such Acquired Entity or Business.



          “Acquired Entity or Business” has the meaning specified in the definition of the term
“Consolidated EBITDA”.



          “Act” has the meaning specified in Section 10.21.



          “Additional Lender” has the meaning specified in Section 2.14(a).



          “Administrative Agent” means UBS AG, Stamford Branch, in its capacity as administrative agent
under the Loan Documents, or any successor administrative agent.



2









 





          “Administrative Agent’s Office” means, with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to
such currency, or such other address or account with respect to such currency as the Administrative
Agent may from time to time notify the Borrower and the Lenders.



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



          “Affected Revolving Credit Class” has the meaning assigned to such term in Section 2.17(a).



          “Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified. “Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.



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



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



          “Aggregate Commitments” means, at any time, the aggregate Commitments of all the Lenders at
such time.



          “Aggregate Extended Synthetic L/C Commitments” means, at any time, the aggregate Extended
Synthetic L/C Commitments of all the Extended Synthetic L/C Lenders at such time.



          “Aggregate Non-Extended Synthetic L/C Commitments” means, at any time, the aggregate
Non-Extended Synthetic L/C Commitments of all the Non-Extended Synthetic L/C Lenders at such time.



          “Aggregate Synthetic L/C Commitments” means, at any time, the aggregate Synthetic L/C
Commitments of all the Synthetic L/C Lenders at such time.



          “Agreement” means this Third Amended and Restated Credit Agreement; provided that, where the
context so requires, such term means the Second Amended and Restated Credit Agreement.



          “Agreement Currency” has the meaning specified in Section 10.19.



          “Alternative Currency” means Sterling or Euros.



3









 





          “Alternative Currency Revolving Credit Borrowing” means a borrowing consisting of simultaneous
Alternative Currency Revolving Credit Loans of the same Type and having the same Interest Period
made by each of the Alternative Currency Revolving Credit Lenders pursuant to Section 2.01(c)(ii).



          “Alternative Currency Revolving Credit Commitment” means, as to each Lender, its obligation,
if any, to (a) make Alternative Currency Revolving Credit Loans to the Borrower pursuant to Section
2.01(c)(ii) and (b) purchase participations in Alternative Currency Revolving L/C Obligations, in
an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 under the caption “Alternative Currency
Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The aggregate Dollar Amount of the Alternative Currency Revolving
Credit Commitments on the Third Amendment and Restatement Effective Date is $100,000,000.



          “Alternative Currency Revolving Credit Exposure” means, as to each Lender, the sum of the
outstanding principal amount of such Lender’s Alternative Currency Revolving Credit Loans and its
Pro Rata Share of the Alternative Currency Revolving L/C Obligations at such time.



          “Alternative Currency Revolving Credit Facility” means, at any time, the aggregate Dollar
Amount of the Alternative Currency Revolving Credit Commitments, and the extensions of credit made
thereunder, at such time.



          “Alternative Currency Revolving Credit Lender” means, at any time, any Lender that has an
Alternative Currency Revolving Credit Commitment or Alternative Currency Revolving Credit Exposure
at such time.



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



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



          “Alternative Currency Revolving L/C Borrowing” means an extension of credit resulting from a
drawing under any Alternative Currency Revolving Letter of Credit which has not been reimbursed on
the applicable Honor Date or refinanced as an Alternative Currency Revolving Credit Borrowing.



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



4









 





          “Alternative Currency Revolving L/C Issuer” means UBS AG, Stamford Branch and any other Lender
that becomes an Alternative Currency Revolving L/C Issuer in accordance with Section 2.03(j) or
10.07(j), in each case, in its capacity as an issuer of Alternative Currency Revolving Letters of
Credit hereunder, or any successor issuer of Alternative Currency Revolving Letters of Credit
hereunder.



          “Alternative Currency Revolving L/C Obligations” means, as at any date of determination, the
aggregate maximum amount then available to be drawn under all outstanding Alternative Currency
Revolving Letters of Credit (whether or not such maximum amount is then in effect under any such
Alternative Currency Revolving Letter of Credit if such maximum amount increases periodically
pursuant to the terms of such Alternative Currency Revolving Letter of Credit) plus the
aggregate of all Unreimbursed Amounts in respect of Alternative Currency Revolving Letters of
Credit, including, without duplication, all Alternative Currency Revolving L/C Borrowings.



          “Alternative Currency Revolving Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency.



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




     (a) with respect to Revolving Credit Loans, unused Revolving Credit Commitments,
Revolving Letter of Credit fees, Non-Extended Tranche B Dollar Term Loans, Non-Extended
Euro Term Loans and Non-Extended Synthetic L/C Facility fees, the following percentages per
annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Eurocurrency	 	 
	 	 	 	 	 	 	Eurocurrency	 	 	 	 	 	 	 	 	 	 	 	 	 	Rate for	 	Base Rate
	 	 	 	 	 	 	Rate for	 	 	 	 	 	 	 	 	 	 	 	 	 	Non-Extended	 	for
	 	 	 	 	 	 	Revolving	 	 	 	 	 	 	 	 	 	 	 	 	 	Tranche B	 	Non-
	 	 	 	 	 	 	Credit Loans	 	Base Rate	 	 	 	 	 	Non-	 	Dollar Term	 	Extended
	 	 	 	 	 	 	and	 	for	 	 	 	 	 	Extended	 	Loans and	 	Tranche B
	 	 	 	 	 	 	Revolving	 	Revolving	 	 	 	 	 	Synthetic	 	Non-Extended	 	Dollar
	Pricing	 	Total Leverage	 	Letter of	 	Credit	 	Commitment	 	L/C	 	Euro Term	 	Term
	Level	 	Ratio	 	Credit Fees	 	Loans	 	Fee Rate	 	Facility Fee	 	Loans	 	Loans
	1
	 	 	>4.5:1	 	 	 	2.75	%	 	 	1.75	%	 	 	0.50	%	 	 	2.50	%	 	 	2.50	%	 	 	1.50	%
	2
	 	£4.5:1 but 34.0:1	 	 	2.50	%	 	 	1.50	%	 	 	0.50	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%
	3
	 	£4.0:1 but 33.5:1	 	 	2.25	%	 	 	1.25	%	 	 	0.50	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%
	4
	 	£3.5:1 but >3.0:1	 	 	2.00	%	 	 	1.00	%	 	 	0.375	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%
	5
	 	 	£3.0:1	 	 	 	1.75	%	 	 	0.75	%	 	 	0.375	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%







     (b) with respect to Extended Tranche B Dollar Term Loans, Extended Euro Term
Loans and Tranche S Term Loans, the following percentages per annum:



5









 





	 	 	 	 	 
	Eurocurrency Rate for	 	 
	Extended Tranche B	 	Base Rate for
	Dollar Term Loans,	 	Extended Tranche B
	Extended Euro Term	 	Dollar Term Loans
	Loans and Tranche S	 	and Tranche S Term
	Term Loans	 	Loans
	4.50%
	 	 	3.50	%







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



          “Appropriate Lender” means, at any time, (a) with respect to Commitments or Loans of any
Class, the Lenders of such Class, (b) with respect to Letters of Credit, (i) the relevant L/C
Issuers and (ii) (x) with respect to any Dollar Revolving Letters of Credit issued pursuant to
Section 2.03(a), the Dollar Revolving Credit Lenders, (y) with respect to any Alternative Currency
Revolving Letters of Credit issued pursuant to Section 2.03(a), the Alternative Currency Revolving
Credit Lenders and (z) with respect to any Synthetic L/C Letters of Credit issued pursuant to
Section 2.03(a), the Synthetic L/C Lenders and (c) with respect to the Swing Line Facility, (i) the
Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the
Dollar Revolving Credit Lenders.



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



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



          “Arrangers” means UBS Securities LLC and Credit Suisse Securities (USA) LLC, each in its
capacity as a Joint Bookrunner and a Co-Lead Arranger under this Agreement.



          “Assignees” has the meaning specified in Section 10.07(b).



6









 





          “Assignment and Assumption” means an Assignment and Assumption substantially in the form of
Exhibit E.



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



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



          “Audited Financial Statements” means the Original Closing Date Audited Financial Statements
and the Worldspan Closing Date Audited Financial Statements.



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



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



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



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



          “Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term Borrowing or a
Non-Extended Synthetic L/C Borrowing, as the context may require.



          “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:




     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any
such day on which dealings in deposits



7









 






in Dollars are conducted by and between banks in the London interbank eurodollar
market;




     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euros, any fundings, disbursements, settlements and payments in Euros in
respect of any such Eurocurrency Rate Loan, or any other dealings in Euros to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a
TARGET Day; and




     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Sterling, any fundings, disbursements, settlements and payments in Sterling
in respect of any such Eurocurrency Rate Loan, or any other dealings in Sterling to be
carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means
any such day on which dealings in deposits in Sterling are conducted by and between banks
in the London interbank eurodollar market.



          “Capital Expenditures” means, for any period, the aggregate of (a) all expenditures (whether
paid in cash or accrued as liabilities) by Holdings, the Borrower and the Restricted Subsidiaries
during such period that, in conformity with GAAP, are or are required to be included as additions
during such period to property, plant or equipment reflected in the consolidated balance sheet of
Holdings, the Borrower and the Restricted Subsidiaries, (b) all Capitalized Software Expenditures
for such period and (c) the value of all assets under Capitalized Leases incurred by Holdings, the
Borrower and the Restricted Subsidiaries during such period; provided that the term “Capital
Expenditures” shall not include (i) expenditures made in connection with the replacement,
substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds
paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y)
awards of compensation arising from the taking by eminent domain or condemnation of the assets
being replaced, (ii) the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment to the extent that the gross amount of such purchase price is
reduced by the credit granted by the seller of such equipment for the equipment being traded in at
such time, (iii) the purchase of plant, property or equipment or software to the extent financed
with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant
to Section 2.05(b), (iv) expenditures that constitute any part of Consolidated Lease Expense, (v)
expenditures that are accounted for as capital expenditures by Holdings, the Borrower or any
Restricted Subsidiary and that actually are paid for by a Person other than Holdings, the Borrower
or any Restricted Subsidiary and for which none of Holdings, the Borrower or any Restricted
Subsidiary has provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such Person or any other Person (whether before, during or after
such period), (vi) the book value of any asset owned by Holdings, the Borrower or any Restricted
Subsidiary prior to or during such period to the extent that such book value is included as a
capital expenditure during such period as a result of such Person reusing or beginning to reuse
such asset during such period without a corresponding expenditure actually having been made in such
period; provided that (x) any expenditure necessary in order to permit such asset to



8









 




be reused shall be included as a Capital Expenditure during the period in which such
expenditure actually is made and (y) such book value shall have been included in Capital
Expenditures when such asset was originally acquired, or (vii) expenditures that constitute
Permitted Acquisitions.




          “Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations
under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance
with GAAP.



          “Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries
during such period in respect of purchased software or internally developed software and software
enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized
costs on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.



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



          “Cash Collateral Account” means a blocked account at UBS AG, Stamford Branch (or another
commercial bank selected in compliance with Section 9.09) in the name of the Administrative Agent
and under the sole dominion and control of the Administrative Agent, and otherwise established in a
manner satisfactory to the Administrative Agent.



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



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




     (a) Dollars, Euros or, in the case of any Foreign Subsidiary, such local currencies
held by it from time to time in the ordinary course of business;




     (b) readily marketable obligations issued or directly and fully guaranteed or insured
by the government or any agency or instrumentality of (i) the United States or (ii) any
member nation of the European Union, in each case having average maturities of not more
than 12 months from the date of acquisition thereof; provided that the full faith and
credit of the United States or a member nation of the European Union is pledged in support
thereof;




     (c) time deposits with, or insured certificates of deposit or bankers’ acceptances
of, any commercial bank that (i) is a Lender or (ii) (A) is organized under the Laws of the
United States, any state thereof, the District of Columbia or any member nation of the
Organization for Economic Cooperation and Development or is the principal banking
Subsidiary of a bank holding company organized under the Laws of the United States, any
state thereof, the District of Columbia or any member nation of the Organization for
Economic Cooperation and Development, and is a member of the Federal Reserve System, and
(B) has



9









 






combined capital and surplus of at least $250,000,000 (any such bank in the foregoing
clauses (i) or (ii) being an “Approved Bank”), in each case with average maturities of not
more than 12 months from the date of acquisition thereof;




     (d) commercial paper and variable or fixed rate notes issued by an Approved Bank (or
by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed
by, a corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the
equivalent thereof) or better by Moody’s, in each case with average maturities of not more
than 12 months from the date of acquisition thereof;




     (e) repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer, in each case, having
capital and surplus in excess of $250,000,000 for direct obligations issued by or fully
guaranteed or insured by the government or any agency or instrumentality of (i) the United
States or (ii) any member nation of the European Union, in which such Person shall have a
perfected first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations;




     (f) securities with average maturities of 12 months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government having an investment grade rating
from either S&P or Moody’s (or the equivalent thereof);




     (g) Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P
or Aaa3 (or the equivalent thereof) or better by Moody’s;




     (h) instruments equivalent to those referred to in clauses (a) through (g) above
denominated in Euros or any other foreign currency comparable in credit quality and tenor
to those referred to above and customarily used by corporations for cash management
purposes in any jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Restricted Subsidiary organized in such
jurisdiction; and




     (i) Investments, classified in accordance with GAAP as current assets of Holdings,
the Borrower or any Restricted Subsidiary, in money market investment programs which are
registered under the Investment Company Act of 1940 or which are administered by financial
institutions having capital of at least $250,000,000, and, in either case, the portfolios
of which are limited such that substantially all of such investments are of the character,
quality and maturity described in clauses (a) through (h) of this definition.



10









 





          “Cash Management Bank” means any Lender or any Affiliate of a Lender providing cash management
services to Holdings, the Borrower or any Restricted Subsidiary.



          “Cash Management Obligations” means obligations owed by Holdings, the Borrower or any
Restricted Subsidiary to any Lender or any Affiliate of a Lender in respect of any overdraft and
related liabilities arising from treasury, depository and cash management services (including in
respect of liabilities arising from purchase cards, travel and entertainment cards, or other card
services) or any automated clearing house transfers of funds.



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



          “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as subsequently amended.



          “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.



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




     (a) the Permitted Holders ceasing to have the power, directly or indirectly, to vote
or direct the voting of securities having a majority of the ordinary voting power for the
election of directors of Holdings; provided that the occurrence of the foregoing event
shall not be deemed a Change of Control if:




     (i) any time prior to the consummation of a Qualifying IPO, and for any
reason whatsoever, (A) the Permitted Holders otherwise have the right, directly or
indirectly, to designate (and do so designate) a majority of the board of directors
of Holdings at such time or (B) the Permitted Holders own a majority of the
outstanding voting Equity Interests of Holdings at such time, or




     (ii) at any time upon or after the consummation of a Qualifying IPO, and for
any reason whatsoever, (A) no “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit
plan of such person and its Subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan),
excluding the Permitted Holders, shall become the “beneficial owner” (as defined in
Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the
greater of (x) thirty-five percent (35%) of the then outstanding voting stock of
Holdings and (y) the percentage of the then outstanding voting stock of Holdings



11









 






owned, directly or indirectly, beneficially by the Permitted Holders, and (B)
during each period of twelve (12) consecutive months, the board of directors of
Holdings shall consist of a majority of the Continuing Directors; or




     (b) any “Change of Control” (or any comparable term) in any document pertaining to
the High Yield Notes, any Junior Financing or any Permitted Refinancing Indebtedness with
an aggregate outstanding principal amount in excess of the Threshold Amount; or




     (c) at any time prior to a Qualifying IPO of the Borrower, the Borrower ceasing to be
a directly or indirectly wholly owned Subsidiary of Holdings.



          “Class” (a) when used with respect to Lenders, refers to whether such Lenders are Dollar
Revolving Credit Lenders, Alternative Currency Revolving Credit Lenders, Extended Tranche B Dollar
Term Lenders, Non-Extended Tranche B Dollar Term Lenders, Extended Euro Term Lenders, Non-Extended
Euro Term Lenders, Extended Synthetic L/C Lenders or Non-Extended Synthetic L/C Lenders, (b) when
used with respect to Commitments, refers to whether such Commitments are Dollar Revolving Credit
Commitments, Alternative Currency Revolving Credit Commitments, Extended Synthetic L/C Commitments
or Non-Extended Synthetic L/C Commitments, (c) when used with respect to Loans or a Borrowing,
refers to whether such Loans, or the Loans comprising such Borrowing, are Dollar Revolving Credit
Loans, Alternative Currency Revolving Credit Loans, Extended Tranche B Dollar Term Loans,
Non-Extended Tranche B Dollar Term Loans, Extended Euro Term Loans, Non-Extended Euro Term Loans,
Tranche S Term Loans or Non-Extended Synthetic L/C Loans, (d) when used with respect to Facilities,
refers to whether such Facility is the Dollar Revolving Credit Facility, the Alternative Currency
Revolving Credit Facility, the Extended Tranche B Dollar Term Facility, the Non-Extended Tranche B
Dollar Term Facility, the Extended Euro Term Facility, the Non-Extended Euro Term Facility, the
Extended Synthetic L/C Facility or the Non-Extended Synthetic L/C Facility, and (e) when used with
respect to Synthetic L/C Exposure, refers to whether such exposure is Extended Synthetic L/C
Exposure or the Non-Extended Synthetic L/C Exposure.



          “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules
and regulations related thereto.



          “Co-Documentation Agents” means Lehman Brothers Inc., J.P. Morgan Securities Inc. and Goldman
Sachs Credit Partners L.P., as Co-Documentation Agents under this Agreement.



          “Collateral” means all of the “Collateral”, or terms of similar import, as defined in any
Collateral Document, including the Mortgaged Properties.



          “Collateral Agent” means UBS AG, Stamford Branch, in its capacity as collateral agent under
any of the Loan Documents, or any successor collateral agent.



12









 





          “Collateral and Guarantee Requirement” means, at any time, the requirement that:




     (a) the Administrative Agent shall have received each Collateral Document required to
be delivered (i) on the Original Closing Date pursuant to Section 4.01(a)(iii) of the
Original Credit Agreement, (ii) on the Worldspan Closing Date pursuant to Section
4.01(a)(iii) of the Second Amended and Restated Credit Agreement or (iii) pursuant to
Section 6.11 at such time, duly executed by each Loan Party thereto;




     (b) all Obligations shall have been unconditionally guaranteed (the “Guarantees”) by
Holdings, any Intermediate Holding Company that is not an Excluded Subsidiary and each
Restricted Subsidiary of Holdings that is a Domestic Subsidiary and not an Excluded
Subsidiary (each, a “Guarantor”);




     (c) all guarantees issued or to be issued in respect of the Senior Subordinated Notes
(i) shall be subordinated to the Guarantees to the same extent that the Senior Subordinated
Notes are subordinated to the Obligations and (ii) shall provide for their automatic
release upon a release of the corresponding Guarantee;




     (d) the Obligations and the Guarantees shall have been secured by a first-priority
security interest in (i) all of the Equity Interests of the Borrower, (ii) all Equity
Interests (other than Equity Interests of Unrestricted Subsidiaries and any Equity Interest
of any Restricted Subsidiary pledged to secure Indebtedness permitted under Section
7.03(g)) of each wholly owned Domestic Subsidiary of Holdings that is the direct Subsidiary
of Holdings, an Intermediate Holding Company or a Domestic Subsidiary of Holdings, and
(iii) 65% of the issued and outstanding Equity Interests of each wholly owned Foreign
Subsidiary that is directly owned by Holdings, an Intermediate Holding Company, the
Borrower or any Domestic Subsidiary of Holdings that is a Guarantor;




     (e) except to the extent otherwise permitted hereunder or under any Collateral
Document, the Obligations and the Guarantees shall have been secured by a perfected
security interest in, and mortgages on, substantially all tangible and intangible assets of
Holdings, the Borrower and each other Guarantor (including accounts (other than deposit
accounts or other bank or securities accounts), inventory, equipment, investment property,
contract rights, intellectual property, other general intangibles, owned (but not leased)
real property and proceeds of the foregoing), in each case, with the priority required by
the Collateral Documents; provided that security interests in real property shall be
limited to the Mortgaged Properties;




     (f) none of the Collateral shall be subject to any Liens other than Liens permitted
by Section 7.01; and



13









 






     (g) the Collateral Agent shall have received (i) counterparts of a Mortgage with
respect to (x) the owned real property of the Loan Parties located at 5350 South Valentia
Way, Greenwood Village, Colorado delivered in accordance with Section 6.16 of the Original
Credit Agreement and (y) each owned property required to be delivered pursuant to Section
6.11 (the “Mortgaged Properties”) duly executed and delivered by the record owner of such
property, (ii) a policy or policies of title insurance issued by a nationally recognized
title insurance company insuring the Lien of each such Mortgage as a valid Lien on the
property described therein, free of any other Liens except as expressly permitted by
Section 7.01, together with such endorsements, coinsurance and reinsurance as the
Administrative Agent may reasonably request, and (iii) such existing surveys, existing
abstracts, existing appraisals, legal opinions and other documents as the Administrative
Agent may reasonably request with respect to any such Mortgaged Property.



          The foregoing definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance or surveys with respect to, particular
assets if and for so long as, in the reasonable judgment of the Administrative Agent (confirmed in
writing by notice to the Borrower), the cost of creating or perfecting such pledges or security
interests in such assets or obtaining title insurance or surveys in respect of such assets shall be
excessive in view of the benefits to be obtained by the Lenders therefrom. The Administrative
Agent may grant extensions of time for the perfection of security interests in or the obtaining of
title insurance with respect to particular assets (including extensions beyond the Original Closing
Date for the perfection of security interests in the assets of the Loan Parties on such date) where
it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished
without undue effort or expense by the time or times at which it would otherwise be required by
this Agreement or the Collateral Documents.



          Notwithstanding the foregoing provisions of this definition or anything in this Agreement or
any other Loan Document to the contrary, (a) with respect to leases of real property entered into
by the Borrower or any other Guarantor, the Borrower shall not be required to take any action with
respect to creation or perfection of security interests with respect to such leases and (b) Liens
required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall
be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the
Original Closing Date and, to the extent appropriate in the applicable jurisdiction, as agreed
between the Administrative Agent and the Borrower.



          “Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property
Security Agreement, the Mortgages, each of the mortgages, collateral assignments, Security
Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered
to the Collateral Agent for the benefit of the Lenders pursuant to Section 6.11 or Section 6.13,
the Guaranty and each of the other agreements, instruments or documents that creates or purports to
create a Lien or Guarantee in favor of the Administrative Agent or the Collateral Agent, as the
case may be, for the benefit of the Secured Parties.



14









 





          “Commitment” means a Revolving Credit Commitment or a Synthetic L/C Commitment, as the context
may require.



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



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



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



          “Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period,
plus:




     (a) without duplication and to the extent already deducted (and not added back) in
arriving at such Consolidated Net Income, the sum of the following amounts for such period:




     (i) total interest expense and, to the extent not reflected in such total
interest expense, any losses on hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, net of interest income
and gains on such hedging obligations, and costs of surety bonds in connection with
financing activities;




     (ii) provision for taxes based on income, profits or capital of Holdings, the
Borrower and the Restricted Subsidiaries, including state, franchise and similar
taxes (such as the Pennsylvania capital tax) and foreign withholding taxes paid or
accrued during such period;




     (iii) depreciation and amortization including amortization of Capitalized
Software Expenditures;




     (iv) Non-Cash Charges;




     (v) extraordinary losses and unusual or non-recurring charges, severance,
relocation costs and curtailments or modifications to pension and post-retirement
employee benefit plans;




     (vi) restructuring charges or reserves (including restructuring costs related
to acquisitions after the Original Closing Date and to closure/consolidation of
facilities);




     (vii) any deductions attributable to minority interests;



15









 






     (viii) the amount of management, monitoring, consulting and advisory fees and
related expenses paid to the Sponsor to the extent permitted hereunder;




     (ix) the amount of any restructuring charges, integration costs or other
business optimization expenses or reserves deducted (and not added back) in such
period in computing Consolidated Net Income, including any one-time costs incurred
in connection with acquisitions after the Original Closing Date and costs related
to the closure and/or consolidation of facilities, the separation from Cendant
Corporation and the business-to-consumer platform;




     (x) any costs or expenses incurred by Holdings, the Borrower or a Restricted
Subsidiary pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent that such costs or expenses are funded with
cash proceeds contributed to the capital of Holdings, the Borrower or net cash
proceeds of an issuance of Equity Interests of Holdings (other than Disqualified
Equity Interests);




     (xi) the amount of net cost savings projected by the Borrower in good faith
to be realized as a result of specified actions taken during or prior to such
period (calculated on a pro forma basis as though such cost savings had been
realized on the first day of such period), net of the amount of actual benefits
realized during such period from such actions; provided that (A) such cost savings
are reasonably identifiable and factually supportable, (B) such actions are taken
no later than 36 months after the Original Closing Date, (C) no cost savings shall
be added pursuant to this clause (xi) to the extent duplicative of any expenses or
charges relating to such cost savings that are included in clause (vi) above with
respect to such period and (D) the aggregate amount of cost savings added pursuant
to this clause (xi) shall not exceed $150,000,000 for any period consisting of four
consecutive quarters;




     (xii) without duplication of any amounts added back to Consolidated EBITDA in
such period pursuant to the last clause (iii) of this definition of “Consolidated
EBITDA”, the amount of net cost savings resulting from the Worldspan Acquisition
projected by the Borrower in good faith to be realized as a result of specified
actions projected to be taken (calculated on a pro forma basis as though such cost
savings had been realized on the first day of such period), net of the amount of
actual benefits realized during such period from such actions; provided that (A)
such cost savings are reasonably identifiable and factually supportable, (B) no
cost savings shall be added pursuant to this clause (xii) to the extent duplicative
of any expenses or charges relating to such cost savings that are included in
clause (vi) above with respect to such period and (C) the aggregate amount



16









 






of cost savings added pursuant to this clause (xii) shall not exceed
$100,000,000 for any period consisting of four consecutive quarters; and




     (xiii) on and after the Worldspan Closing Date, any payments with respect to
the FASA Credits; less




     (b) without duplication and to the extent included in arriving at such Consolidated
Net Income, the sum of the following amounts for such period:




     (i) extraordinary gains and unusual or non-recurring gains;




     (ii) (a) non-cash gains (excluding any non-cash gain to the extent it
represents the reversal of an accrual or reserve for a potential cash item that
reduced Consolidated EBITDA in any prior period) and (b) for the year ended
December 31, 2005, an aggregate of (i) $12.5 million applicable to changes in
estimates with respect to the allowance for doubtful accounts, (ii) $11.1 million
applicable to changes in estimates of breakage revenues relating to vendor
liabilities and (iii) $2.7 million applicable to changes in estimates with respect
to Orbitz’s affinity credit card-related liability, in each case as recorded on a
quarterly basis;




     (iii) gains on asset sales (other than asset sales in the ordinary course of
business);




     (iv) any net after-tax income from the early extinguishment of Indebtedness
or hedging obligations or other derivative instruments; and




     (v) all gains from investments recorded using the equity method; provided
that Consolidated EBITDA shall be increased by the amount of dividends or
distributions or other payments from such investment to a Loan Party or the
Restricted Subsidiary which made the investment that are actually paid in cash
during such period (or to the extent converted into cash during such period),


in each case, as determined on a consolidated basis for Holdings, the Borrower and the Restricted
Subsidiaries in accordance with GAAP; provided that, to the extent included in Consolidated Net
Income,





     (i) there shall be excluded in determining Consolidated EBITDA currency
translation gains and losses (after any offset) related to currency remeasurements
of Indebtedness (including the net loss or gain resulting from Swap Contracts for
currency exchange risk);




     (ii) there shall be excluded in determining Consolidated EBITDA for any
period any adjustments (after any offset) resulting from the application of
Statement of Financial Accounting Standards No. 133; and



17









 






     (iii) without duplication of any amounts added back to Consolidated EBITDA in
such period pursuant to clause (xii) of this definition of “Consolidated EBITDA”,
there shall be included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person, property, business or asset
acquired by Holdings, Intermediate Parent, the Borrower or any Restricted
Subsidiary during such period (but not the Acquired EBITDA of any related Person,
property, business or assets to the extent not so acquired), to the extent not
subsequently sold, transferred or otherwise disposed by the Borrower or such
Restricted Subsidiary during such period (each such Person, property, business or
asset acquired and not subsequently so disposed of, an “Acquired Entity or
Business”), based on the actual Acquired EBITDA of such Acquired Entity or Business
for such period (including the portion thereof occurring prior to such acquisition)
and (B) for the purposes of the definition of the term “Permitted Acquisition” and
Section 7.11, an adjustment in respect of each Acquired Entity or Business equal to
the amount of the Pro Forma Adjustment with respect to such Acquired Entity or
Business for such period (including the portion thereof occurring prior to such
acquisition) as specified in a certificate executed by a Responsible Officer and
delivered to the Lenders and the Administrative Agent and (C) for purposes of
determining the Total Leverage Ratio only, there shall be excluded in determining
Consolidated EBITDA for any period the Disposed EBITDA of any Person, property,
business or asset sold, transferred or otherwise disposed of, closed or classified
as discontinued operations by Holdings, the Borrower or any Restricted Subsidiary
during such period (each such Person, property, business or asset so sold or
disposed of, a “Sold Entity or Business”), based on the actual Disposed EBITDA of
such Sold Entity or Business for such period (including the portion thereof
occurring prior to such sale, transfer or disposition).


For the purpose of the definition of Consolidated EBITDA, “Non-Cash Charges” means (a) losses on
discontinued operations and asset sales, disposals or abandonments (including, without limitation,
the Travel 2 Travel 4 operations being disposed), (b) any impairment charge or asset write-off
including, without limitation, those related to intangible assets, long-lived assets, and
investments in debt and equity securities, in each case, pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards compensation expense, and (e)
other non-cash charges including, without limitation, the amortization of up-front bonuses in
connection with the supplier services business (provided that if any non-cash charges referred to
in this clause (e) represent an accrual or reserve for potential cash items in any future period,
the cash payment in respect thereof in such future period shall be subtracted from Consolidated
EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior
period).




          “Consolidated Lease Expense” means, for any period, all rental expenses of Holdings, the
Borrower and the Restricted Subsidiaries during such period under operating leases for real or
personal property (including in connection with sale-



18









 




leaseback transactions permitted by Section 7.05(f)), excluding real estate taxes, insurance
costs and common area maintenance charges and net of sublease income, other than (a) obligations
under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses
associated with assets acquired pursuant to a Permitted Acquisition to the extent such rental
expenses relate to operating leases in effect at the time of (and immediately prior to) such
acquisition and related to periods prior to such acquisition and (c) all obligations under
Capitalized Leases, all as determined on a consolidated basis in accordance with GAAP.




          “Consolidated Net Income” means, for any period, the net income (loss) of Holdings, the
Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, excluding, without duplication, (a) the net income of any Restricted
Subsidiary of Holdings (other than any Guarantors) during such period to the extent that the
declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that
income is not permitted by operation of the terms of its organizational documents or any agreement,
instrument or requirement of law or regulation applicable to that Restricted Subsidiary during such
period unless such restriction has been legally waived, (b) extraordinary items for such period,
(c) the cumulative effect of a change in accounting principles during such period to the extent
included in Consolidated Net Income, (d) in the case of any period that includes a period ending
prior to or during the fiscal quarter ending June 30, 2007, Transaction Expenses, (e) any fees and
expenses incurred during such period, or any amortization thereof for such period, in connection
with any acquisition, investment, asset disposition, issuance or repayment of debt, issuance of
equity securities, refinancing transaction or amendment or other modification of any debt
instrument (in each case, including any such transaction consummated prior to the Original Closing
Date and any such transaction undertaken but not completed) and any charges or integration or
non-recurring merger costs incurred during such period as a result of any such transaction
(including, without limitation, (i) bonuses paid in connection with the Gullivers Travel Associates
Acquisition and (ii) any adjustments to liabilities owing to former owners of Orbitz under a tax
sharing agreement), (f) any income (loss) for such period attributable to the early extinguishment
of Indebtedness and (g) (i) accruals and reserves that are established within twelve months after
the Original Closing Date that are so required to be established as a result of the Original
Closing Date Transactions in accordance with GAAP and (ii) accruals and reserves that are
established within twelve months after the Worldspan Closing Date that are so required to be
established as a result of the Worldspan Transactions in accordance with GAAP; provided that, for
the avoidance of doubt, any net income attributable to a Restricted Subsidiary shall only
constitute Consolidated Net Income after deducting for any minority interests in such Restricted
Subsidiary. There shall be excluded from Consolidated Net Income for any period the purchase
accounting effects of adjustments to property and equipment, software and other intangible assets,
deferred revenue and debt line items in component amounts required or permitted by GAAP and related
authoritative pronouncements (including the effects of such adjustments pushed down to Holdings,
the Borrower and the Restricted Subsidiaries), as a result of the Transaction, any acquisition
consummated prior to the Original Closing Date, any Permitted Acquisitions, or the amortization or
write-off of any amounts thereof, net of taxes (other than the impact of unfavorable contract
liabilities and commission agreements under



19









 




purchase accounting). In addition, on and after the Worldspan Closing Date, FASA Credits
provided by Worldspan, L.P. to Northwest or Delta shall reduce consolidated net income in the
period in which such credit was provided regardless of accounting treatment in accordance with
GAAP, except to the extent FASA Credits have been prepaid with the proceeds of debt issuances by
Worldspan.




          “Consolidated Total Debt” means, as of any date of determination, (a)(i) the aggregate
principal amount of Indebtedness of Holdings, the Borrower and the Restricted Subsidiaries
outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding
the effects of any discounting of Indebtedness resulting from the application of purchase
accounting in connection with the Transaction or any Permitted Acquisition), consisting of
Indebtedness for borrowed money, obligations in respect of Capitalized Leases and debt obligations
evidenced by promissory notes or similar instruments, plus (ii) on and after the Worldspan
Closing Date, the present value of all remaining payments due under the FASA Credits at an assumed
11% discount rate (unless remaining payments under the FASA Credits are classified as a liability
on the consolidated balance sheet of Holdings, the Borrower and the Restricted Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP), in which case, the amount under
this clause (ii) shall be the amount of such liability, minus (b) without duplication, the
aggregate amount of cash and Cash Equivalents credited to the Tranche S Collateral Account as of
such date and the aggregate amount of cash and Cash Equivalents (in each case, free and clear of
all Liens, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section
7.01(s) and clauses (i) and (ii) of Section 7.01(u)) included in the consolidated balance sheet of
Holdings, the Borrower and the Restricted Subsidiaries as of such date; provided that Consolidated
Total Debt shall not include the Synthetic L/C Facilities or the Credit-Linked Deposits, except to
the extent of Unreimbursed Amounts thereunder and outstanding Tranche S Term Loans and Non-Extended
Synthetic L/C Loans.



          “Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts
(other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite
the caption “total current assets” (or any like caption) on a consolidated balance sheet of
Holdings, the Borrower and the Restricted Subsidiaries at such date over (b) the sum of all amounts
that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities”
(or any like caption) on a consolidated balance sheet of Holdings, the Borrower and the Restricted
Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the
current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and L/C Obligations
to the extent otherwise included therein, (iii) the current portion of interest and (iv) the
current portion of current and deferred income taxes.



          “Continuing Directors” means the directors of Holdings on the Original Closing Date, as
elected or appointed after giving effect to the Original Closing Date Transactions and the other
transactions contemplated hereby, and each other director, if, in each case, such other directors’
nomination for election to the board of directors of Holdings (or the Borrower after a Qualifying
IPO of the Borrower) is recommended by a majority of the then Continuing Directors or such other
director receives the vote of the



20









 




Permitted Holders in his or her election by the stockholders of Holdings (or the Borrower
after a Qualifying IPO of the Borrower).




          “Contract Consideration” has the meaning specified in the definition of “Excess Cash Flow”.



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



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



          “Credit Extension” means (a) a Borrowing or (b) an L/C Credit Extension.



          “Credit-Linked Deposit” means, with respect to each Non-Extended Synthetic L/C Lender, the
amount, if any, on deposit in the Credit-Linked Deposit Account to the credit of such Lender, as
such amount may be (a) reduced from time to time pursuant to Section 2.06(d), (b) increased from
time to time pursuant to Section 2.05(a)(v) or (c) reduced or increased from time to time pursuant
to Section 2.03(c)(viii) or pursuant to assignments by or to such Lender pursuant to Section 10.07.
The initial amount of the Credit-Linked Deposit of each Non-Extended Synthetic L/C Lender shall be
equal to the cash deposit made by such Lender to the Credit-Linked Deposit Account pursuant to this
Agreement as in effect prior to the Third Amendment and Restatement Effective Date or, in the case
of any Non-Extended Synthetic L/C Lender that shall have acquired its Credit-Linked Deposit
pursuant to an Assignment and Assumption, the amount set forth in such Assignment and Assumption.



          “Credit-Linked Deposit Account” means the operating and/or investment account of, and
established by, the Administrative Agent under its exclusive dominion and control that shall be
used for the purposes set forth in Sections 2.03(c)(viii) and 2.03(k).



          “Credit-Linked Deposit Cost Amount” means, for any Interest Period with respect to the
Credit-Linked Deposits, an amount (expressed in basis points) reasonably determined by the
Administrative Agent in good faith to represent the Administrative Agent’s administrative cost for
investing the Credit-Linked Deposits and maintaining the Credit-Linked Deposit Account for such
Interest Period, which amount shall not exceed 12.5 basis points for such Interest Period.



          “Cumulative Excess Cash Flow” has the meaning specified in Section 7.06(i).



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



21









 





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



          “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans under the applicable Facility plus
(c) 2.0% per annum; provided that with respect to a Eurocurrency Rate Loan, the Default Rate shall
be an interest rate equal to the interest rate (including any Applicable Rate and any Mandatory
Cost) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest
extent permitted by applicable Laws.



          “Defaulting Lender” shall mean any Lender, as determined by the Administrative Agent, that (a)
has failed to fund any portion of its Loans or participations in Revolving L/C Obligations or Swing
Line Obligations required to be funded by it hereunder within one (1) Business Day of the date
required to be funded by it hereunder, (b) has notified the Administrative Agent, the applicable
Revolving L/C Issuer, the Swing Line Lender, any Lender and/or the Borrower in writing that it does
not intend to comply with any of its funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it commits to extend credit, (c) has failed, within
three (3) Business Days after request by the Administrative Agent, to confirm that it will comply
with the terms of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Revolving Letters of Credit and Swing Line Loans, (d) has
otherwise failed to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within three (3) Business Days of the date when due, unless the
subject of a good faith dispute, or (e) in the case of a Lender that has a Commitment, Revolving
L/C Obligations or Swing Line Obligations outstanding at such time, shall take, or is the
Subsidiary of any person that has taken, any action or be (or is) the subject of any action or
proceeding of a type described in Section 8.01(f) or (g) (or any comparable proceeding initiated by
a regulatory authority having jurisdiction over such Lender or such person).



          “Delayed Draw Term Loan” has the meaning specified in the Second Amended and Restated Credit
Agreement.



          “Delta” means Delta Air Lines, Inc., a Delaware corporation.



          “Delta FASA” means the Delta Founder Airline Services Agreement, dated as June 30, 2003,
between Delta and the Borrower.



          “Designated Non-Cash Consideration” means the fair market value of non-cash consideration
received by Holdings, the Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to Section 7.05(j) that is designated as Designated Non-Cash Consideration pursuant to a
certificate of a Responsible Officer, setting forth the basis of such valuation (which amount will
be reduced by the fair market value of the portion of the non-cash consideration converted to cash
within 180 days following the consummation of the applicable Disposition).



22









 





          “Disposed EBITDA” means, with respect to any Sold Entity or Business for any period, the
amount for such period of Consolidated EBITDA of such Sold Entity or Business (determined as if
references to Holdings, the Borrower and the Restricted Subsidiaries in the definition of
Consolidated EBITDA were references to such Sold Entity or Business and its Subsidiaries), all as
determined on a consolidated basis for such Sold Entity or Business.



          “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction and any sale of Equity Interests) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or without recourse,
of any notes or accounts receivable or any rights and claims associated therewith; provided that
“Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its
Equity Interests to another Person.



          “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control, event of loss or asset
disposition so long as any rights of the holders thereof upon the occurrence of a change of
control, event of loss or asset disposition event shall be subject to the prior repayment in full
of the Loans and all other Obligations that are accrued and payable and the termination of the
Commitments and all outstanding Letters of Credit), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for
the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable
for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests,
in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date in
effect at the time such Equity Interest is issued.



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



          “Dollar Amount” means, at any time:




     (a) with respect to any Loan denominated in Dollars (including, with respect to any
Swing Line Loan, any funded participation therein), the principal amount thereof then
outstanding (or in which such participation is held);




     (b) with respect to any Loan denominated in an Alternative Currency, the principal
amount thereof then outstanding in the relevant Alternative Currency, converted to Dollars
in accordance with Section 1.08 and Section 2.15(a); and




     (c) with respect to any L/C Obligation (or any risk participation therein), (A) if
denominated in Dollars, the amount thereof and (B) if denominated in an Alternative
Currency, the amount thereof converted to Dollars in accordance with Section 1.08 and
Section 2.15(b).



23









 





          “Dollar Refinanced Term Loans” has the meaning specified in Section 10.01.



          “Dollar Replacement Term Loans” has the meaning specified in Section 10.01.



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



          “Dollar Revolving Credit Commitment” means, as to each Lender, its obligation, if any, to (a)
make Dollar Revolving Credit Loans to the Borrower pursuant to Section 2.01(c)(i), (b) purchase
participations in Dollar Revolving L/C Obligations and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set
forth opposite such Lender’s name on Schedule 2.01 under the caption “Dollar Revolving
Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The aggregate amount of the Dollar Revolving Credit Commitments on the Third
Amendment and Restatement Effective Date is $200,000,000.



          “Dollar Revolving Credit Exposure” means, as to each Lender, the sum of the outstanding
principal amount of such Lender’s Dollar Revolving Credit Loans and its Pro Rata Share of the
Dollar Revolving L/C Obligations and the Swing Line Obligations at such time.



          “Dollar Revolving Credit Facility” means, at any time, the aggregate Dollar Amount of the
Dollar Revolving Credit Commitments, and the extensions of credit thereunder, at such time.



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



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



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



          “Dollar Revolving L/C Borrowing” means an extension of credit resulting from a drawing under
any Dollar Revolving Letter of Credit which has not been reimbursed on the applicable Honor Date or
refinanced as a Dollar Revolving Credit Borrowing.



24









 





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



          “Dollar Revolving L/C Issuer” means UBS AG, Stamford Branch and any other Lender that becomes
a Dollar Revolving L/C Issuer in accordance with Section 2.03(j) or 10.07(j), in each case, in its
capacity as an issuer of Dollar Revolving Letters of Credit hereunder, or any successor issuer of
Dollar Revolving Letters of Credit hereunder.



          “Dollar Revolving L/C Obligation” means, as at any date of determination, the aggregate
maximum amount then available to be drawn under all outstanding Dollar Revolving Letters of Credit
(whether or not such maximum amount is then in effect under any such Dollar Revolving Letter of
Credit if such maximum amount increases periodically pursuant to the terms of such Dollar Revolving
Letter of Credit) plus the aggregate of all Unreimbursed Amounts in respect of Dollar Revolving
Letters of Credit, including, without duplication, all Dollar Revolving L/C Borrowings.



          “Dollar Revolving Letter of Credit” means a Letter of Credit denominated in Dollars that is
designated as a “Revolving Letter of Credit” in accordance with Section 2.03.



          “Dollar Revolving Letter of Credit Sublimit” means an amount equal to the lesser of (a)
$50,000,000 and (b) the aggregate Dollar Amount of the Dollar Revolving Credit Commitments.



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



          “ECF Percentage” has the meaning specified in Section 2.05(b).



          “Eligible Assignee” means any Assignee permitted by and consented to in accordance with
Section 10.07(b).



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



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



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



25









 




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




          “Environmental Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.



          “Equity Interests” means, with respect to any Person, all of the shares, interests, rights,
participations or other equivalents (however designated) of capital stock of (or other ownership or
profit interests or units in) such Person and all of the warrants, options or other rights for the
purchase, acquisition or exchange from such Person of any of the foregoing (including through
convertible securities).



          “Equity Investors” means the Sponsor, the Other Sponsor and the Management Stockholders.



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



          “ERISA Affiliate” means any trade or business (whether or not incorporated) that is under
common control with any Loan Party within the meaning of Section 414 of the Code or Section 4001 of
ERISA.



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



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



          “Euro Refinanced Term Loans” has the meaning specified in Section 10.01.



26









 





          “Euro Replacement Term Loans” has the meaning specified in Section 10.01.



          “Euro Term Commitment” has the meaning specified in the Second Amended and Restated Credit
Agreement.



          “Eurocurrency Rate” means, for any Interest Period with respect to any Eurocurrency Rate Loan
or any Credit-Linked Deposit:




     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Dow Jones Market screen (or any successor
thereto) that displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars or Sterling (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest Period, or, if
different, the date on which quotations would customarily be provided by leading banks in
the London Interbank Market for deposits of amounts in the relevant currency for delivery
on the first day of such Interest Period, or




     (b) if the rate referenced in the preceding clause (a) does not appear on such page
or service or such page or service shall not be available, the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars or Sterling (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest Period, or, if
different, the date on which quotations would customarily be provided by leading banks in
the London Interbank Market for deposits of amounts in the relevant currency for delivery
on the first day of such Interest Period,




     (c) if the rates referenced in the preceding clauses (a) and (b) are not available,
the rate per annum determined by the Administrative Agent as the rate of interest at which
deposits in Dollars or Sterling for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by UBS AG, Stamford Branch and with a term equivalent to such
Interest Period would be offered by a London Affiliate of UBS AG, Stamford Branch to major
banks in the London interbank eurodollar market at their request at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of such Interest Period or,
if different, the date on which quotations would customarily be provided by leading banks
in the London Interbank Market for deposits of amounts in the relevant currency for
delivery on the first day of such Interest Period,




     (d) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the Telerate page 248 (or any



27









 






successor thereto) for deposits in Euros (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (Brussels time) two (2) Business Days prior to the first day of
such Interest Period, or, if different, the date on which quotations would customarily be
provided by leading banks in the European interbank market for deposits of amounts in Euros
for delivery on the first day of such Interest Period,




     (e) if the rate referenced in the preceding clause (d) does not appear on such page
or service or such page or service shall not be available, the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate on such other page or
other service that displays an average Banking Federation of the European Union Interest
Settlement Rate for deposits in Euros (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest
Period, or, if different, the date on which quotations would customarily be provided by
leading banks in the European interbank market for deposits of amounts in Euros for
delivery on the first day of such Interest Period, or




     (f) if the rates referenced in the preceding clauses (d) and (e) are not available,
the rate per annum determined by the Administrative Agent as the rate of interest at which
deposits in Euros for delivery on the first day of such Interest Period in Same Day Funds
in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted
by UBS AG, Stamford Branch and with a term equivalent to such Interest Period would be
offered by a London Affiliate of UBS AG, Stamford Branch to major banks in the European
interbank market at their request at approximately 11:00 a.m. (Brussels time) two (2)
Business Days prior to the first day of such Interest Period or, if different, the date on
which quotations would customarily be provided by leading banks in the European interbank
market for deposits of amounts in the relevant currency for delivery on the first day of
such Interest Period.



          “Eurocurrency Rate Loan” means a Loan, whether denominated in Dollars or in an Alternative
Currency, that bears interest at a rate based on the Eurocurrency Rate.



          “Euro Term Lender” means an Extended Euro Term Lender or a Non-Extended Euro Term Lender.



          “Euro Term Loan” means an Extended Euro Term Loan or a Non-Extended Euro Term Loan.



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



          “Excess Cash Flow” means, for any period, an amount equal to the excess of:




     (a) the sum, without duplication, of:



28









 






     (i) Consolidated Net Income for such period,




     (ii) an amount equal to the amount of all non-cash charges to the extent
deducted in arriving at such Consolidated Net Income,




     (iii) decreases in Consolidated Working Capital and long-term account
receivables for such period (other than any such decreases arising from
acquisitions (other than acquisitions of inventory in the ordinary course of
business) by Holdings, the Borrower and the Restricted Subsidiaries completed
during such period)), and




     (iv) an amount equal to the aggregate net non-cash loss on Dispositions by
Holdings, the Borrower and the Restricted Subsidiaries during such period (other
than Dispositions in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income; over




     (b) the sum, without duplication, of:




     (i) an amount equal to the amount of all non-cash credits included in
arriving at such Consolidated Net Income and cash charges included in clauses (a)
through (f) of the definition of Consolidated Net Income,




     (ii) without duplication of amounts deducted pursuant to clause (xi) below in
prior fiscal years, the amount of Capital Expenditures made in cash, except to the
extent that such Capital Expenditures were financed with the proceeds of
Indebtedness of Holdings, the Borrower or the Restricted Subsidiaries,




     (iii) the aggregate amount of all principal payments of Indebtedness of
Holdings, the Borrower and the Restricted Subsidiaries (including (A) the principal
component of payments in respect of Capitalized Leases and (B) the amount of any
mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent
required due to a Disposition that resulted in an increase to Consolidated Net
Income and not in excess of the amount of such increase but excluding (x) all other
prepayments of Term Loans and (y) all prepayments of Revolving Credit Loans and
Swing Line Loans) made during such period (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), except to the extent financed with the proceeds of other
Indebtedness of Holdings, the Borrower or the Restricted Subsidiaries,




     (iv) an amount equal to the aggregate net non-cash gain on Dispositions by
Holdings, the Borrower and the Restricted Subsidiaries during such period (other
than Dispositions in the ordinary course of business) to the extent included in
arriving at such Consolidated Net Income,



29









 






     (v) increases in Consolidated Working Capital and long-term account
receivables for such period (other than any such increases arising from
acquisitions by Holdings, the Borrower and the Restricted Subsidiaries during such
period),




     (vi) cash payments by Holdings, the Borrower and the Restricted Subsidiaries
during such period in respect of long-term liabilities of Holdings, the Borrower
and the Restricted Subsidiaries other than Indebtedness,




     (vii) without duplication of amounts deducted pursuant to clause (xi) below
in prior fiscal years, the amount of Investments and acquisitions made during such
period pursuant to Section 7.02(b), (i) or (n) to the extent that such Investments
and acquisitions were financed with internally generated cash flow of Holdings, the
Borrower and the Restricted Subsidiaries,




     (viii) the amount of Restricted Payments paid during such period pursuant to
Section 7.06(i) to the extent such Restricted Payments were financed with
internally generated cash flow of Holdings, the Borrower and the Restricted
Subsidiaries,




     (ix) the aggregate amount of expenditures actually made by Holdings, the
Borrower and the Restricted Subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that such
expenditures are not expensed during such period,




     (x) the aggregate amount of any premium, make-whole or penalty payments
actually paid in cash by Holdings, the Borrower and the Restricted Subsidiaries
during such period that are required to be made in connection with any prepayment
of Indebtedness,




     (xi) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by Holdings, the
Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the
“Contract Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during the
period of four consecutive fiscal quarters of the Borrower following the end of
such period; provided that to the extent the aggregate amount of internally
generated cash actually utilized to finance such Permitted Acquisitions during such
period of four consecutive fiscal quarters is less than the Contract Consideration,
the amount of such shortfall shall be added to the calculation of Excess Cash Flow
at the end of such period of four consecutive fiscal quarters, and



30









 






     (xii) the amount of cash taxes paid in such period to the extent they exceed
the amount of tax expense deducted in determining Consolidated Net Income for such
period.



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



          “Exchange Rate” means on any day with respect to any currency other than Dollars, the rate at
which such currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m. (London
time) on such day on the Reuters World Currency Page for such currency; in the event that such rate
does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange operations in respect of
such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date
for the purchase of Dollars for delivery two Business Days later.



          “Excluded Subsidiary” means (a) any Subsidiary that is not a wholly owned Subsidiary of
Holdings, (b) each Subsidiary listed on Schedule 1.01G hereto, (c) any Subsidiary that is
prohibited by applicable Law from guaranteeing the Obligations, (d) any Domestic Subsidiary that is
a Subsidiary of (i) a Foreign Subsidiary of Borrower or (ii) a Foreign Subsidiary (other than an
Intermediate Holding Company or a Subsidiary of Borrower) of Holdings, (e) any Restricted
Subsidiary acquired pursuant to a Permitted Acquisition financed with secured Indebtedness incurred
pursuant to Section 7.03(g) and each Restricted Subsidiary thereof that guarantees such
Indebtedness, provided that each such Restricted Subsidiary shall cease to be an Excluded
Subsidiary under this clause (e) if such secured Indebtedness is repaid or becomes unsecured or if
such Restricted Subsidiary ceases to guarantee such secured Indebtedness, as applicable, and (f)
any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent
(confirmed in writing by notice to the Borrower), the cost or other consequences (including any
adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be
obtained by the Lenders therefrom.



          “Existing Credit-Linked Deposit” means a “Post-First Amendment and Restatement Credit-Linked
Deposit” as defined in the Second Amended and Restated Credit Agreement.



          “Existing Euro Term Loan” means a “Euro Term Loan” as defined in the Second Amended and
Restated Credit Agreement.



          “Existing Letters of Credit” has the meaning specified in the Second Amended and Restated
Credit Agreement.



          “Existing Synthetic L/C Commitments” means the “Post-First Amendment and Restatement Synthetic
L/C Commitments” as defined in the Second Amended and Restated Credit Agreement.



31









 





          “Existing Term Loans” means the Existing Euro Term Loans and the Existing Tranche B Dollar
Term Loans.



          “Existing Tranche B Dollar Term Loan” means a “Tranche B Dollar Term Loan” as defined in the
Second Amended and Restated Credit Agreement.



          “Extended Euro Term Facility” means the Extended Euro Term Loans.



          “Extended Euro Term Lender” means, at any time, any Lender that has an Extended Euro Term Loan
at such time.



          “Extended Euro Term Loan” means an Existing Euro Term Loan that shall have been converted to
an “Extended Euro Term Loan” under the Third Amendment and Restatement Agreement.



          “Extended Synthetic L/C Commitment” means, as to each Lender, its obligation, if any, to (a)
fund a Tranche S Term Loan on the Third Amendment and Restatement Effective Date pursuant to
Section 4(a)(ii) of the Third Amendment and Restatement Agreement and (b) purchase participations
in Synthetic L/C Obligations in an aggregate amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule 2.01A to the Third Amendment and
Restatement Agreement under the caption “Extended Synthetic L/C Commitments” or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the
Extended Synthetic L/C Commitments on the Third Amendment and Restatement Effective Date is
$136,792,213.15.



          “Extended Synthetic L/C Exposure” means, as to each Lender, the product of (a) such Lender’s
Extended Synthetic L/C Percentage and (b) such Lender’s Pro Rata Share (determined on the basis of
the aggregate amount of its Synthetic L/C Commitments as a percentage of the Aggregate Synthetic
L/C Commitments) of the Synthetic L/C Obligations at such time; provided that, if any Unreimbursed
Amount under a Synthetic L/C Letter of Credit shall have been refinanced, in part, with
Non-Extended Synthetic L/C Loans, then, for so long as such Loans shall be outstanding, the
Extended Synthetic L/C Exposure of any Lender shall include such Lender’s Pro Rata Share
(determined on the basis of its Extended Synthetic L/C Commitment as a percentage of the Aggregate
Extended Synthetic L/C Commitments) of the amount withdrawn from the Tranche S Collateral Account
pursuant to Section 2.03(c)(viii)(B) to reimburse, in part, such Unreimbursed Amount.



          “Extended Synthetic L/C Facility” means the Extended Synthetic L/C Commitments, and the
extensions of credit made thereunder, including the Tranche S Term Loans.



          “Extended Synthetic L/C Lender” means, at any time, any Lender that has an Extended Synthetic
L/C Commitment, a Tranche S Term Loan or an Extended Synthetic L/C Exposure at such time.



32









 





          “Extended Synthetic L/C Percentage” means, with respect to any Extended Synthetic L/C Lender
at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Extended Synthetic L/C Commitment of such Lender at such
time and the denominator of which is the aggregate amount of the Synthetic L/C Commitments of such
Lender at such time.



          “Extended Synthetic L/C Pro Rata Share Amount” means, when used with respect to the portion of
any Unreimbursed Amount under a Synthetic L/C Letter of Credit allocable to any Extended Synthetic
L/C Lender, the product of (a) such Lender’s Pro Rata Share (determined on the basis of the
aggregate amount of its Synthetic L/C Commitments as a percentage of the Aggregate Synthetic L/C
Commitments) of such Unreimbursed Amount and (b) such Lender’s Extended Synthetic L/C Percentage.



          “Extended Term Loan” means an Extended Euro Term Loan or an Extended Tranche B Dollar Term
Loan.



          “Extended Tranche B Dollar Term Facility” means the Extended Tranche B Dollar Term Loans.



          “Extended Tranche B Dollar Term Lender” means, at any time, any Lender that has an Extended
Tranche B Dollar Term Loan at such time.



          “Extended Tranche B Dollar Term Loan” means an Existing Tranche B Dollar Term Loan that shall
have been converted to an “Extended Tranche B Dollar Term Loan” under the Third Amendment and
Restatement Agreement.



          “Facility” means the Extended Tranche B Dollar Term Facility, the Non-Extended Tranche B
Dollar Term Facility, the Extended Euro Term Facility, the Non-Extended Euro Term Facility, the
Dollar Revolving Credit Facility, the Alternative Currency Revolving Credit Facility, the Extended
Synthetic L/C Facility or the Non-Extended Synthetic L/C Facility, as the context may require, and
are referred to collectively as the “Facilities”.



          “FASA Credits” means the Delta FASA Credits and the Northwest FASA Credits, as defined in the
Delta FASA and the Northwest FASA, respectively.



          “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 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 UBS AG,
Stamford Branch on such day on such transactions as determined by the Administrative Agent.



33









 





          “First Amendment and Restatement Effective Date” has the meaning specified in the Second
Amended and Restated Credit Agreement.



          “First Mortgage Amendment” has the meaning specified in Section 6.17.



          “Foreign Holdco” means a direct wholly owned Subsidiary of Holdings which shall hold all of
Holdings’ interests in all of its other Foreign Subsidiaries.



          “Foreign Lender” has the meaning specified in Section 10.15(a)(i).



          “Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by, or entered into with, any Loan Party or any Subsidiary with
respect to employees employed outside the United States.



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



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



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



          “Funded Debt” means all Indebtedness of Holdings, the Borrower and the Restricted Subsidiaries
for borrowed money that matures more than one year from the date of its creation or matures within
one year from such date that is renewable or extendable, at the option of such Person, to a date
more than one year from such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than one year from such
date, including Indebtedness in respect of the Loans.



          “GAAP” means generally accepted accounting principles in the United States of America, as in
effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Original Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.



          “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive,




34











 




legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




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



          “Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other monetary obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or
monetary other obligation of the payment or performance of such Indebtedness or other monetary
obligation, (iii) to maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such Indebtedness or other
monetary obligation of the payment or performance thereof or to protect such obligee against loss
in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or
monetary other obligation is assumed by such Person (or any right, contingent or otherwise, of any
holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not
include endorsements for collection or deposit, in either case in the ordinary course of business,
or customary and reasonable indemnity obligations in effect on the Original Closing Date or entered
into in connection with any acquisition or disposition of assets permitted under this Agreement
(other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.



          “Guarantors” has the meaning specified in the definition of “Collateral and Guarantee
Requirement”.



          “Guaranty” means (a) the guaranty made by Holdings and the Subsidiary Guarantors in favor of
the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit
F and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.11.



          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or 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.



35









 





          “Hedge Bank” means (i) UBS AG, London branch, with respect to those certain three cross
currency swaps executed by Borrower with UBS AG, London branch, each with an effective date of
August 23, 2006 and (ii) any Person that is a Lender or an Affiliate of a Lender at the time it
enters into a Secured Hedge Agreement, in its capacity as a party thereto.



          “High Yield Notes” means the Senior Notes and Senior Subordinated Notes.



          “High Yield Notes Documentation” means the High Yield Notes, and all documents executed and
delivered with respect to the High Yield Notes, including the Senior Notes Indenture and the Senior
Subordinated Notes Indenture.



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



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



          “Incremental Term Loans” has the meaning specified in Section 2.14(a).



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




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




     (b) the maximum amount (after giving effect to any prior drawings or reductions which
may have been reimbursed) of all letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar
instruments issued or created by or for the account of such Person;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts payable in the ordinary course of business and (ii)
any earn-out obligation until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP);




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



36









 






     (f) all Attributable Indebtedness;




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




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


For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, except to the
extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent
such Indebtedness would be included in the calculation of Consolidated Total Debt and (B) in the
case of Holdings and its Subsidiaries, exclude all intercompany Indebtedness having a term not
exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary of
business consistent with past practice. The amount of any net obligation under any Swap Contract
on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount
of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser
of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the
property encumbered thereby as determined by such Person in good faith.




          “Indemnified Liabilities” has the meaning specified in Section 10.05.



          “Indemnitees” has the meaning specified in Section 10.05.



          “Information” has the meaning specified in Section 10.08.



          “Intellectual Property Security Agreement” means the Intellectual Property Security Agreement,
substantially in the form attached as Exhibit J.



          “Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided that if any Interest Period for a Eurocurrency Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan (including a Swing Line
Loan), the last Business Day of each March, June, September and December and the Maturity Date of
the Facility under which such Loan was made; and (c) as to any Credit-Linked Deposit, the last day
of each Interest Period therefor or the date of any prepayment thereof.



          “Interest Period” means (a) as to each Eurocurrency Rate Loan, the period commencing on the
date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate
Loan and ending on the date one, two, three or six months thereafter, or to the extent available to
each Lender of such Eurocurrency Rate Loan, nine or twelve months or less than one month
thereafter, as selected by the Borrower in its Committed Loan Notice (except for any Non-Extended
Synthetic L/C Loan or any Tranche S Term Loan, which shall initially have an Interest Period



37









 




coincident with the Interest Period in effect for the Credit-Linked Deposits at the time such
Loan is made, subject to subsequent conversion in accordance with Section 2.02), and (b) as to any
Credit-Linked Deposit, the period commencing on the date specified in the Second Amended and
Restated Credit Agreement with respect to such Credit-Linked Deposit and ending on the next
succeeding day thereafter that is the last Business Day of March, June, September or December, and
thereafter, the period commencing on the last day of the preceding Interest Period with respect
thereto; provided that:





     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




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




     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan or Credit-Linked Deposit was made.



          “Intermediate Holding Company” means any Subsidiary of Holdings that, directly or indirectly,
owns 100% of the issued and outstanding Equity Interests of the Borrower.



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



          “Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or
other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint venture interest
in such other Person (excluding, in the case of Holdings and its Subsidiaries, intercompany loans,
advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or
extensions of terms) and made in the ordinary course of business consistent with past practice) or
(c) the purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



          “IP Collateral” means all “Intellectual Property Collateral” referred to in the Collateral
Documents and all of the other IP Rights that are or are required by the



38









 




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




          “IP Rights” has the meaning specified in Section 5.15.



          “IRS” means the United States Internal Revenue Service.



          “Joint Bookrunners” means UBS Securities LLC, Credit Suisse Securities (USA) LLC and Lehman
Brothers Inc., each in its capacity as a Joint Bookrunner under this Agreement.



          “Judgment Currency” has the meaning specified in Section 10.19.



          “Junior Financing” has the meaning specified in Section 7.13(a).



          “Junior Financing Documentation” means any documentation governing any Junior Financing.



          “Latest Maturity Date” means, at any date of determination, the latest date that is a Maturity
Date applicable to any Loan or Commitment hereunder at such time, determined after giving effect to
any extension of the Maturity Dates hereunder and assuming, in the case of any Maturity Date that
is determined by reference to the satisfaction or non-satisfaction of any condition, that such
Maturity Date is to occur on the latest of the dates specified therefor.



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



          “L/C Borrowing” means a Revolving L/C Borrowing or a Non-Extended Synthetic L/C Borrowing.



          “L/C Credit Extension” means a Revolving L/C Credit Extension or a Synthetic L/C Credit
Extension.



          “L/C Issuer” means a Revolving L/C Issuer or the Synthetic L/C Issuer.



          “L/C Obligations” means the Revolving L/C Obligations and the Synthetic L/C Obligations.



          “Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the
context requires, includes an L/C Issuer and the Swing Line Lender, and their respective successors
and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”



39









 





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



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



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



          “Letter of Credit Expiration Date” means (a) with respect to Letters of Credit issued under
the Revolving Credit Facilities, the day that is five (5) Business Days prior to the scheduled
Maturity Date then in effect for the Revolving Credit Facilities (or, if such day is not a Business
Day, the next preceding Business Day) and (b) with respect to Letters of Credit issued under the
Synthetic L/C Facilities, the day that is five (5) Business Days prior to the latest scheduled
Maturity Date then in effect for the Synthetic L/C Facilities (or, if such day is not a Business
Day, the next preceding Business Day).



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



          “Loan” means an extension of credit made by a Lender to the Borrower under Article II
(including such extensions of credit that were made prior to the Third Amendment and Restatement
Effective Date and acknowledged in Section 2.01 as of such date) in the form of a Tranche B Dollar
Term Loan, a Euro Term Loan, a Revolving Credit Loan, a Non-Extended Synthetic L/C Loan, a Tranche
S Term Loan or a Swing Line Loan and (b) an extension of credit made by a Lender to the Borrower in
the form of an Incremental Term Loan.



          “Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents and, except for purposes of Section 10.01, the Tranche S Collateral
Account Agreement and (v) each Letter of Credit Application.



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



          “Management Stockholders” means the members of management of Holdings or any of its
Subsidiaries who are investors in Holdings or any direct or indirect parent thereof.



40









 





          “Mandatory Cost” means, with respect to any period, the percentage rate per annum determined
in accordance with Schedule 1.01D.



          “Master Agreement” has the meaning specified in the definition of “Swap Contract.”



          “Material Adverse Effect” means (a) a material adverse effect on the business, operations,
assets, liabilities (actual or contingent) or financial condition of Holdings and its Subsidiaries,
taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a
whole) to perform their respective payment obligations under any Loan Document to which any of the
Loan Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders
or the Agents under any Loan Document.



          “Maturity Date” means (a) with respect to the Revolving Credit Facilities, the sixth
anniversary of the Original Closing Date, (b) with respect to the Non-Extended Term Loans and the
Non-Extended Synthetic L/C Facility, the seventh anniversary of the Original Closing Date and (c)
with respect to the Extended Term Loans and the Extended Synthetic L/C Facility, the ninth
anniversary of the Original Closing Date; provided that, in the case of clause (c), the Maturity
Date with respect to the Extended Term Loans and the Extended Synthetic L/C Facility (including the
Tranche S Term Loans) shall instead be May 29, 2014, if the Senior Notes shall not have been
repaid, redeemed, defeased, refinanced or otherwise satisfied in full on or prior to May 29, 2014
(with any such repayment, redemption, defeasance, refinancing or other satisfaction financed, in
whole or in part, with the proceeds of Indebtedness qualifying as such for purposes of this
definition only if (i) the stated final maturity of such Indebtedness shall not be earlier than 91
days after the Latest Maturity Date in effect on the date of incurrence thereof, and such stated
final maturity shall not be subject to any conditions that could result in such stated final
maturity occurring on a date that precedes such 91st day (it being understood that acceleration or
mandatory repayment, prepayment, redemption or repurchase of such Indebtedness upon the occurrence
of an event of default, a change in control, an event of loss or an asset disposition shall not be
deemed to constitute a change in the stated final maturity thereof) and (ii) such Indebtedness
shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or
more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof
(except, in each case, upon the occurrence of an event of default, a change in control, an event of
loss or an asset disposition) prior to the date that is 91 days after the Latest Maturity Date in
effect on the date of incurrence thereof, provided that, notwithstanding the foregoing, scheduled
amortization payments (however denominated) of such Indebtedness shall be permitted so long as the
Weighted Average Life to Maturity of such Indebtedness shall be longer than the remaining Weighted
Average Life to Maturity of each Class of the Term Loans outstanding as of the date of incurrence
thereof); provided, further, that if any day that would otherwise be a Maturity Date is not a
Business Day, the Maturity Date shall be the Business Day immediately preceding such day.



          “Maximum Rate” has the meaning specified in Section 10.10.



41









 





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



          “Mortgage” means a document in form and substance reasonably satisfactory to the
Administrative Agent.



          “Mortgage Policies” has the meaning specified in Section 6.13(b)(ii).



          “Mortgaged Properties” has the meaning specified in paragraph (g) of the definition of
“Collateral and Guarantee Requirement”.



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



          “Net Cash Proceeds” means:




     (a) with respect to the Disposition of any asset by Holdings, the Borrower or any
Restricted Subsidiary or any Casualty Event, the excess, if any, of (i) the sum of cash and
Cash Equivalents received in connection with such Disposition or Casualty Event (including
any cash (whether in Dollars or an Alternative Currency) or Cash Equivalents received by
way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise,
but only as and when so received and, with respect to any Casualty Event, any insurance
proceeds or condemnation awards in respect of such Casualty Event actually received by or
paid to or for the account of Holdings, the Borrower or any Restricted Subsidiary) over
(ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness that is secured by the asset subject to such Disposition or
Casualty Event and that is required to be repaid (and is timely repaid) in connection with
such Disposition or Casualty Event (other than Indebtedness under the Loan Documents and
Permitted Refinancing Indebtedness), (B) the out-of-pocket expenses (including attorneys’
fees, investment banking fees, survey costs, title insurance premiums, and related search
and recording charges, transfer taxes, deed or mortgage recording taxes, other customary
expenses and brokerage, consultant and other customary fees) actually incurred by Holdings,
the Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty
Event, (C) taxes paid or reasonably estimated to be actually payable in connection
therewith, and (D) any reserve for adjustment in respect of (x) the sale price of such
asset or assets established in accordance with GAAP and (y) any liabilities associated with
such asset or assets and retained by Holdings, the Borrower or any Restricted Subsidiary
after such sale or other disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction, it being understood that “Net
Cash Proceeds” shall include any cash or Cash Equivalents (i) received upon the Disposition
of any non-cash consideration received by Holdings, the



42









 






Borrower or any Restricted Subsidiary in any such Disposition and (ii) upon the
reversal (without the satisfaction of any applicable liabilities in cash in a corresponding
amount) of any reserve described in clause (D) of the preceding sentence or, if such
liabilities have not been satisfied in cash and such reserve is not reversed within three
hundred and sixty-five (365) days after such Disposition or Casualty Event, the amount of
such reserve; provided that (x) no net cash proceeds calculated in accordance with the
foregoing realized in a single transaction or series of related transactions shall
constitute Net Cash Proceeds unless such net cash proceeds shall exceed a Dollar Amount of
$7,250,000 and (y) no such net cash proceeds shall constitute Net Cash Proceeds under this
clause (a) in any fiscal year until the aggregate amount of all such net cash proceeds in
such fiscal year shall exceed a Dollar Amount of $21,750,000 (and thereafter only net cash
proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause
(a)); and




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



          “New Post-First Amendment and Restatement Synthetic L/C Commitment” has the meaning specified
in the Second Amended and Restated Credit Agreement.



          “New Post-First Amendment and Restatement Synthetic L/C Lender” has the meaning specified in
the Second Amended and Restated Credit Agreement.



          “Non-Cash Charges” has the meaning specified in the definition of the term “Consolidated
EBITDA”.



          “Non-Consenting Lender” has the meaning specified in Section 3.07(d).



          “Non-Extended Euro Term Facility” means the Non-Extended Euro Term Loans.



          “Non-Extended Euro Term Lender” means, at any time, any Lender that has a Non-Extended Euro
Term Loan at such time.



          “Non-Extended Euro Term Loan” means an Existing Euro Term Loan that shall not have been
converted to an “Extended Euro Term Loan” under the Third Amendment and Restatement Agreement.



          “Non-Extended Synthetic L/C Borrowing” means a borrowing consisting of simultaneous
Non-Extended Synthetic L/C Loans deemed made by each of



43









 




the Non-Extended Synthetic L/C Lenders pursuant to Section 2.03(c)(viii) and having the same
Interest Period.




          “Non-Extended Synthetic L/C Commitment” means, as to each Lender, its obligation, if any, to
(a) make Non-Extended Synthetic L/C Loans to the Borrower pursuant to Section 2.03(c)(viii) and (b)
purchase participations in Synthetic L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount of such Lender’s Existing Synthetic L/C Commitment as in
effect immediately prior to the Third Amendment and Restatement Effective Date (less any portion
thereof that shall have been converted to an Extended Synthetic L/C Commitment pursuant to the
Third Amendment and Restatement Agreement) or the amount set forth in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. The aggregate amount of the Non-Extended
Synthetic L/C Commitments on the Third Amendment and Restatement
Effective Date is $13,207,786.85.



          “Non-Extended Synthetic L/C Exposure” means, as to each Lender, the sum of (a) the outstanding
principal amount of such Lender’s Non-Extended Synthetic L/C Loans and (b) the product of (i) such
Lender’s Non-Extended Synthetic L/C Percentage and (ii) such Lender’s Pro Rata Share (determined on
the basis of the aggregate amount of its Synthetic L/C Commitments as a percentage of the Aggregate
Synthetic L/C Commitments) of the Synthetic L/C Obligations at such time.



          “Non-Extended Synthetic L/C Facility” means the Non-Extended Synthetic L/C Commitments and the
extensions of credit made thereunder.



          “Non-Extended Synthetic L/C Lender” means, at any time, any Lender that has a Non-Extended
Synthetic L/C Commitment or a Non-Extended Synthetic L/C Exposure at such time.



          “Non-Extended Synthetic L/C Loans” means the loans deemed made by the Non-Extended Synthetic
L/C Lenders to the Borrower pursuant to Section 2.03(c)(viii) to reimburse, in part, drawings under
a Synthetic L/C Letter of Credit, which loans are funded by reducing the Credit-Linked Deposits by
a like amount.



          “Non-Extended Synthetic L/C Percentage” means, with respect to any Non-Extended Synthetic L/C
Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Non-Extended Synthetic L/C Commitment of such Lender at
such time and the denominator of which is the aggregate amount of the Synthetic L/C Commitments of
such Lender at such time.



          “Non-Extended Synthetic L/C Pro Rata Share Amount” means, when used with respect to the
portion of any Unreimbursed Amount under a Synthetic L/C Letter of Credit allocable to any
Non-Extended Synthetic L/C Lender, the product of (a) such Lender’s Pro Rata Share (determined on
the basis of the aggregate amount of its Synthetic L/C Commitments as a percentage of the Aggregate
Synthetic L/C



44









 




Commitments) of such Unreimbursed Amount and (b) such Lender’s Non-Extended Synthetic L/C
Percentage.




          “Non-Extended Term Loan” means a Non-Extended Euro Term Loan or a Non-Extended Tranche B
Dollar Term Loan.



          “Non-Extended Tranche B Dollar Term Facility” means the Non-Extended Tranche B Dollar Term
Loans.



          “Non-Extended Tranche B Dollar Term Lender” means, at any time, any Lender that has a
Non-Extended Tranche B Dollar Term Loan at such time.



          “Non-Extended Tranche B Dollar Term Loan” means an Existing Tranche B Dollar Term Loan that
shall not have been converted to an “Extended Tranche B Dollar Term Loan” under the Third Amendment
and Restatement Agreement.



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



          “Northwest” means Northwest Airlines, Inc., a Minnesota corporation.



          “Northwest FASA” means the Northwest Founder Airline Services Agreement, dated as of June 30,
2003, between Northwest and the Borrower.



          “Note” means any promissory note of the Borrower payable to a Lender under any Facility or
Facilities (or its registered assigns) evidencing the aggregate Indebtedness of the Borrower to
such Lender resulting from extensions of credit made by such Lender under such Facility or
Facilities. Notes issued on and after the Third Amendment and Restatement Effective Date shall be
in form and substance reasonably satisfactory to the Borrower and the Administrative Agent.



          “Notice of Intent to Cure” has the meaning specified in Section 6.02(b).



          “Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of any
transaction or event or of Excess Cash Flow that is proposed to be applied to a particular use or
transaction, that such amount (a) was not required to be applied to prepay the Loans pursuant to
Section 2.05(b) and (b) was not previously applied, or is not simultaneously being applied, to any
Investment, Restricted Payment or prepayment, redemption, purchase, defeasance or other payment in
respect of a Junior Financing pursuant to Section 7.02(n), 7.06(g)(i) or (ii), 7.06(i) or 7.13(a).



          “NPL” means the National Priorities List under CERCLA.



          “Obligations” means all (a) advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party and its Subsidiaries arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue



45









 




after the commencement by or against any Loan Party or Subsidiary of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding, (b) obligations of any Loan Party and its
Subsidiaries arising under any Secured Hedge Agreement, and (c) Cash Management Obligations.
Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the
Loan Documents (and of their Subsidiaries to the extent they have obligations under the Loan
Documents) include (i) the obligation (including guarantee obligations) to pay principal, interest,
Letter of Credit commissions, reimbursement obligations, charges, expenses, fees, Attorney Costs,
indemnities and other amounts payable by any Loan Party or its Subsidiaries under any Loan Document
and (ii) the obligation of any Loan Party or any of its Subsidiaries to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or
advance on behalf of such Loan Party or such Subsidiary.




          “Orbitz Business” means the Subsidiaries of Holdings whose assets and operations comprise the
Orbitz Worldwide Business division of Holdings (as such division is currently comprised) and do not
contain any portion (other than de minimis portions) of any business, operations or assets of
Holdings or any of its Subsidiaries other than the Orbitz Worldwide Business (as such division is
currently comprised).



          “Orbitz IPO” means an initial public offering of common Equity Interests of Orbitz TopCo.



          “Orbitz TopCo” means a Subsidiary that is part of the Orbitz Business that owns any and all of
the other Subsidiaries of Holdings comprising the Orbitz Business.



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



          “Original Closing Date” means August 23, 2006.



          “Original Closing Date Audited Financial Statements” means the audited combined balance sheets
of the Travelport business of Cendant Corporation as of each of December 31, 2005 and 2004, and the
related audited consolidated statements of income, stockholders’ equity and cash flows for the
Travelport business of Cendant Corporation for the fiscal years ended December 31, 2005, 2004 and
2003, respectively.



46









 





          “Original Closing Date Pro Forma Balance Sheet” has the meaning specified in Section
5.05(a)(ii).



          “Original Closing Date Pro Forma Financial Statements” has the meaning specified in Section
5.05(a)(ii).



          “Original Closing Date Transactions” has the meaning specified in the Second Amended and
Restated Credit Agreement.



          “Original Closing Date Unaudited Financial Statements” means the unaudited consolidated
balance sheets and related statements of income, stockholders’ equity and cash flows of Target and
its Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the
Original Closing Date, which financial statements shall be prepared in accordance with GAAP.



          “Original Credit Agreement” has the meaning specified in the preliminary statements hereto.



          “Original Post-First Amendment and Restatement Synthetic L/C Commitment” has the meaning
specified in the Second Amended and Restated Credit Agreement.



          “Original Post-First Amendment and Restatement Synthetic L/C Lender” has the meaning specified
in the Second Amended and Restated Credit Agreement.



          “Other Sponsor” shall mean another financial sponsor identified to the Administrative Agent
that is a purchaser of Equity Interests in Holdings on or promptly after the Original Closing Date.



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



          “Outstanding Amount” means (a) with respect to the Tranche B Dollar Term Loans, Euro Term
Loans, Incremental Term Loans, Revolving Credit Loans, Non-Extended Synthetic L/C Loans, Tranche S
Term Loans and Swing Line Loans on any date, the Dollar Amount thereof after giving effect to any
borrowings and prepayments or repayments of Tranche B Dollar Term Loans, Euro Term Loans,
Incremental Term Loans, Revolving Credit Loans (including any refinancing of outstanding
Unreimbursed Amounts under Revolving Letters of Credit as a Revolving Credit Borrowing),
Non-Extended Synthetic L/C Loans, Tranche S Term Loans and Swing Line Loans, as the case may be,
occurring on such date, and (b) with respect to any L/C Obligations on any date, the Dollar Amount
thereof on such date after giving effect to any related L/C Credit Extension occurring on such date
and any other changes thereto as of such date, including as a result of any reimbursements of
outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing of
outstanding Unreimbursed Amounts under related Letters of Credit as a Revolving Credit Borrowing or
Non-Extended Synthetic L/C Borrowing, as the case may be) or any reductions in the maximum amount
available for drawing under related Letters of Credit taking effect on such date.



47









 





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



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



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



          “PBGC” means the Pension Benefit Guaranty Corporation.



          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five (5) plan years.



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



          “Permitted Amendments” has the meaning specified in Section 2.17(c).



          “Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests of
Holdings (and, after a Qualifying IPO, of the Borrower or an Intermediate Holding Company) to the
extent permitted hereunder.



          “Permitted Holders” means each of (i) the Sponsor, (ii) the Management Stockholders and (iii)
the Other Sponsor; provided that if the Management Stockholders own beneficially or of record more
than fifteen percent (15%) of the outstanding voting stock of Holdings in the aggregate, they shall
be treated as Permitted Holders of only fifteen percent (15%) of the outstanding voting stock of
Holdings at such time; provided further that if the Other Sponsor owns beneficially or of record
more than fifteen percent (15%) of the outstanding voting stock of Holdings in the aggregate, it
shall be treated as a Permitted Holder of only fifteen percent (15%) of the outstanding voting
stock of Holdings at such time.



          “Permitted Refinancing” means, with respect to any Person, any modification, refinancing,
refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended
except by an amount equal to unpaid accrued interest and premium thereon plus other
reasonable



48









 




amount paid, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any existing commitments
unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of
Indebtedness permitted pursuant to Section 7.03(e), such modification, refinancing, refunding,
renewal or extension has a final maturity date equal to or later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other
than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to
Section 7.03(e), at the time thereof, no Event of Default shall have occurred and be continuing,
and (d) if such Indebtedness being modified, refinanced, refunded, renewed or extended is
Indebtedness permitted pursuant to Section 7.03(b), 7.03(t) or 7.13(a), (i) to the extent such
Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of
payment to the Obligations, such modification, refinancing, refunding, renewal or extension is
subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders
as those contained in the documentation governing the Indebtedness being modified, refinanced,
refunded, renewed or extended, (ii) the terms and conditions (including, if applicable, as to
collateral but excluding as to subordination, interest rate and redemption premium) of any such
modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not
materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the
Indebtedness being modified, refinanced, refunded, renewed or extended; provided that a certificate
of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to
the incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto,
stating that the Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the
foregoing requirement unless the Administrative Agent notifies the Borrower within such five
Business Day period that it disagrees with such determination (including a reasonable description
of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal
or extension is incurred by the Person who is the obligor of the Indebtedness being modified,
refinanced, refunded, renewed or extended.




          “Permitted Refinancing Indebtedness” means (a) Indebtedness of the Borrower and any Guarantees
thereof by the Guarantors; provided that (i) the stated final maturity of such Indebtedness is not
earlier than 91 days after the Latest Maturity Date in effect on the date of incurrence thereof,
and such stated final maturity is not subject to any conditions that could result in such stated
final maturity occurring on a date that precedes such 91st day (it being understood that
acceleration or mandatory repayment, prepayment, redemption or repurchase of such Indebtedness upon
the occurrence of an event of default, a change in control, an event of loss or an asset
disposition shall not be deemed to constitute a change in the stated final maturity thereof), (ii)
such Indebtedness is not required to be repaid, prepaid, redeemed, repurchased or defeased, whether
on one or more fixed dates, upon the occurrence of one or more events or at the option of any
holder thereof (except, in each case, upon the occurrence of an event of default, a change in
control, an event of loss or an asset disposition) prior to the date that is 91 days after



49









 




the Latest Maturity Date in effect on the date of incurrence thereof, provided that,
notwithstanding the foregoing, scheduled amortization payments (however denominated) of such
Indebtedness shall be permitted so long as the Weighted Average Life to Maturity of such
Indebtedness shall be longer than the remaining Weighted Average Life to Maturity of each Class of
the Term Loans outstanding as of the date of incurrence thereof, (iii) such Indebtedness shall not
be an obligation (including pursuant to a Guarantee) of any Person other than the Borrower and the
Guarantors, (iv) 100% of the Net Cash Proceeds of such Indebtedness shall be applied, on the date
of the incurrence thereof, (A) to repay or prepay all or any portion of the outstanding
Non-Extended Term Loans or to refinance all or any portion of the Non-Extended Synthetic L/C
Facility (with a concomitant reduction of the Non-Extended Synthetic L/C Commitments) and (B)(x)
following the repayment or refinancing in full of all the outstanding Non-Extended Term Loans, to
repay or prepay all or any portion of the outstanding Extended Term Loans and (y) following the
expiration and repayment in full of the Non-Extended Synthetic L/C Facility, to refinance all or
any portion of the Extended Synthetic L/C Facility (with a concomitant reduction of the Extended
Synthetic L/C Commitments), (v) such Indebtedness shall not be secured by any Lien on any property
or assets of Holdings or any Subsidiary, provided that any such Indebtedness 100% of the Net Cash
Proceeds of which are applied in accordance with clause (iv)(A) above may be secured on a second
priority basis (and subject to an intercreditor agreement in form and substance reasonably
acceptable to the Administrative Agent) by such property and assets of Holdings and the
Subsidiaries as secure the Obligations (other than the Tranche S Collateral Account and funds
credited thereto), and (vi) both immediately prior and after giving effect thereto, no Default
exists or would result therefrom and (b) any Permitted Refinancing in respect of the Indebtedness
referred to in clause (a) above.




          “Permitted Refinancing Indebtedness Documentation” means any documentation governing any
Permitted Refinancing Indebtedness.



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



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



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



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



          “Post-Acquisition Period” means, with respect to the acquisition of an Acquired Entity or
Business, the period beginning on the date such acquisition is consummated and ending on the last
day of the sixth full consecutive fiscal quarter immediately following the date on which such
acquisition is consummated.



50









 





          “Principal L/C Issuer” means (a) any L/C Issuer that has issued Letters of Credit under either
Revolving Credit Facility having an aggregate Outstanding Amount in excess of $10,000,000 and (b)
the Synthetic L/C Issuer.



          “Pro Forma Adjustment” means, for any Test Period that includes all or any part of a fiscal
quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the
applicable Acquired Entity or Business or the Consolidated EBITDA of the Borrower, the pro forma
increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
projected by the Borrower in good faith as a result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period,
in each case in connection with the combination of the operations of such Acquired Entity or
Business with the operations of Holdings, the Borrower and the Restricted Subsidiaries; provided
that, so long as such actions are taken during such Post-Acquisition Period or such costs are
incurred during such Post-Acquisition Period, as applicable, the cost savings related to such
actions or such additional costs, as applicable, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may
be, that such cost savings will be realizable during the entirety of such Test Period, or such
additional costs, as applicable, will be incurred during the entirety of such Test Period; provided
further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, shall be without duplication for cost savings or additional costs
already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such
Test Period.



          “Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to
compliance with any test or covenant hereunder, that (A) if compliance for a Test Period ending on
or before June 30, 2007 is being determined, the Transaction shall have been deemed to have been
consummated on the first day of such applicable Test Period, (B) to the extent applicable, the Pro
Forma Adjustment shall have been made and (C) all Specified Transactions and the following
transactions in connection therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement in such test or covenant: (a) income statement items (whether
positive or negative) attributable to the property or Person subject to such Specified Transaction,
(i) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of
Holdings or any division, product line, or facility used for operations of Holdings or any of its
Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment
described in the definition of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by Holdings, the Borrower or any of the
Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; provided that, without limiting the
application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments
may be applied to any such test or covenant solely to the extent that



51









 




such adjustments are consistent with the definition of Consolidated EBITDA and give effect to
events (including operating expense reductions) that are (i) (x) directly attributable to such
transaction, (y) expected to have a continuing impact on Holdings, the Borrower and the Restricted
Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro
Forma Adjustment.




          “Pro Rata Share” means, with respect to each Lender at any time a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Commitments of such Lender under the applicable Facility or Facilities at such time and the
denominator of which is the amount of the Aggregate Commitments under the applicable Facility or
Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata
Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately
prior to such termination and after giving effect to any subsequent assignments made pursuant to
the terms hereof.



          “Purchase Agreement” means the Purchase Agreement by and among Cendant Corporation, Travelport
LLC and TDS Investor LLC dated as of June 30, 2006.



          “Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity
Interests.



          “Qualifying IPO” means the issuance by Holdings, any direct or indirect parent of Holdings,
any Intermediate Holding Company or the Borrower of its common Equity Interests in an underwritten
primary public offering (other than an offering solely in respect of an employee stock purchase
program) in the United States, Canada, Switzerland or any member nation of the European Union.



          “Register” has the meaning specified in Section 10.07(d).



          “Rejection Notice” has the meaning specified in Section 2.05(b)(vi).



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



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



          “Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
sum of the (a) Total Outstandings (with the aggregate Dollar Amount of each Lender’s risk
participation and funded participation in Dollar L/C Obligations and Swing Line Loans being deemed
“held” by such Lender for purposes of this definition), (b) aggregate unused Tranche B Dollar Term
Commitments, (c) aggregate unused Euro Term Commitments, (d) aggregate unused Revolving Credit



52









 




Commitments and (e) aggregate Unused Synthetic L/C Commitments; provided that the unused
Tranche B Dollar Term Commitment, unused Euro Term Commitment, unused Revolving Credit Commitment
and Unused Synthetic L/C Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender or Holdings or any Affiliate thereof shall be excluded for purposes
of making a determination of Required Lenders.




          “Responsible Officer” means the chief executive officer, president, vice president, chief
financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and,
as to any document delivered on the Original Closing Date, the First Amendment and Restatement
Effective Date or the Worldspan Closing Date, any secretary or assistant secretary of a Loan Party.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



          “Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any Equity Interest of Holdings, the Borrower or any Restricted
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such Equity Interest, or on account of any return
of capital to Holdings or the Borrower’s stockholders, partners or members (or the equivalent
Persons thereof).



          “Restricted Subsidiary” means any Subsidiary of Holdings (including any Intermediate Holding
Company) other than an Unrestricted Subsidiary and other than the Borrower.



          “Revolving Commitment Increase” has the meaning specified in Section 2.14(a).



          “Revolving Commitment Increase Lender” has the meaning specified in Section 2.14(a).



          “Revolving Credit Borrowing” means a Dollar Revolving Credit Borrowing or an Alternative
Currency Revolving Credit Borrowing.



          “Revolving Credit Commitments” means the collective reference to the Dollar Revolving Credit
Commitment and the Alternative Currency Revolving Credit Commitment.



          “Revolving Credit Exposure” means the collective reference to the Dollar Revolving Credit
Exposure and the Alternative Currency Revolving Credit Exposure.



          “Revolving Credit Facilities” means the collective reference to the Dollar Revolving Credit
Facility and the Alternative Currency Revolving Credit Facility.



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          “Revolving Credit Lenders” means the collective reference to the Dollar Revolving Credit
Lenders and the Alternative Currency Revolving Credit Lenders.



          “Revolving Credit Loan Modification Agreement” shall mean a Revolving Credit Loan Modification
Agreement in form and substance reasonably satisfactory to the Revolving Credit Loan Modification
Offer Arranger, the Administrative Agent and the Borrower, among the Borrower, the other Loan
Parties, one or more Accepting Revolving Credit Lenders, the Revolving Credit Loan Modification
Offer Arranger and the Administrative Agent.



          “Revolving Credit Loan Modification Offer” has the meaning specified in Section 2.17.



          “Revolving Credit Loan Modification Offer Arranger” means, with respect to any Revolving
Credit Loan Modification Offer, any Person or Persons appointed by the Borrower as an arranger
thereof.



          “Revolving Credit Loans” means the collective reference to the Dollar Revolving Credit Loans
and the Alternative Currency Revolving Credit Loans.



          “Revolving L/C Advances” means the collective reference to Dollar Revolving L/C Advances and
Alternative Currency Revolving L/C Advances.



          “Revolving L/C Borrowings” means the collective reference to Dollar Revolving L/C Borrowings
and Alternative Currency Revolving L/C Borrowings.



          “Revolving L/C Credit Extensions” means the collective reference to the Dollar Revolving L/C
Credit Extensions and the Alternative Currency Revolving L/C Credit Extensions.



          “Revolving L/C Issuer” means the collective reference to the Dollar Revolving L/C Issuer and
the Alternative Currency Revolving L/C Issuer.



          “Revolving L/C Obligations” means the collective reference to the Dollar Revolving L/C
Obligations and the Alternative Currency Revolving L/C Obligations.



          “Revolving Letters of Credit” means the collective reference to Dollar Revolving Letters of
Credit and Alternative Currency Revolving Letters of Credit.



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



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



54









 





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



          “Second Amended and Restated Credit Agreement” has the meaning specified in the preliminary
statements to this Agreement.



          “Second Amendment and Restatement Effective Date” has the meaning specified in the Second
Amended and Restated Credit Agreement.



          “Second Mortgage Amendment” has the meaning specified in Section 6.17.



          “Secured Hedge Agreement” means any Swap Contract permitted under Section 7.03(f) that is
entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank.



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



          “Securities Act” means the Securities Act of 1933.



          “Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties,
substantially in the form of Exhibit G, together with each other security agreement
supplement executed and delivered pursuant to Section 6.11.



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



          “Senior Notes” means, collectively, (a) $450,000,000 in aggregate principal amount of the
Borrower’s 97/8% senior dollar fixed rate notes due 2014, (b) $150,000,000 in aggregate principal
amount of the Borrower’s dollar floating rate senior unsecured notes due 2014 and (c) €235,000,000
in aggregate principal amount of the Borrower’s euro floating rate senior unsecured notes due 2014.



          “Senior Notes Indenture” means the Indenture for the Senior Notes, dated as of August 23,
2006.



          “Senior Subordinated Notes” means, collectively, (a) $300,000,000 in aggregate principal
amount of the Borrower’s 117/8% senior subordinated notes due 2016 and (b) €160,000,000 in aggregate
principal amount of the Borrower’s 107/8% senior euro fixed rate notes due 2016.



          “Senior Subordinated Notes Indenture” means the Indenture for the Senior Subordinated Notes,
dated as of August 23, 2006.



55









 





          “Sold Entity or Business” has the meaning specified in the definition of the term
“Consolidated EBITDA”.



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



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



          “Specified Transaction” means any Investment, Disposition, incurrence or repayment of
Indebtedness, Restricted Payment, Subsidiary designation, Incremental Term Loan or Revolving
Commitment Increase that by the terms of this Agreement requires “Pro Forma Compliance” with a test
or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”;
provided that a Revolving Commitment Increase, for purposes of this “Specified Transaction”
definition, shall be deemed to be fully drawn.



          “Sponsor” means The Blackstone Group and its Affiliates, but not including, however, any of
its portfolio companies.



          “Sponsor Management Agreement” means the management agreement between certain of the
management companies associated with the Sponsor and the Borrower.



          “Sponsor Termination Fees” means the one time payment under the Sponsor Management Agreement
of a termination fee to the Sponsor and its Affiliates in the event of either a Change of Control
or the completion of a Qualifying IPO.



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



          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein



56









 




to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of
Holdings.




          “Subsidiary Guarantor” means, collectively, the Subsidiaries of Holdings that are Guarantors.



          “Successor Borrower” has the meaning specified in Section 7.04(d).



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



          “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



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



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



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



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



57









 





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



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



          “Swing Line Obligations” means, as at any date of determination, the aggregate principal
amount of all Swing Line Loans outstanding.



          “Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the
aggregate Dollar Amount of the Dollar Revolving Credit Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Dollar Revolving Credit Commitments.



          “Syndication Agent” means Credit Suisse Securities (USA), LLC, as Syndication Agent under this
Agreement.



          “Synthetic L/C Commitment” means an Extended Synthetic L/C Commitment or a Non-Extended
Synthetic L/C Commitment.



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



          “Synthetic L/C Exposure” means the collective reference to the Extended Synthetic L/C Exposure
and the Non-Extended Synthetic L/C Exposure.



          “Synthetic L/C Exposure Readjustment Date” has the meaning specified in Section 2.03(a)(ii).



          “Synthetic L/C Facilities” means the collective reference to the Extended Synthetic L/C
Facility and the Non-Extended Synthetic L/C Facility.



          “Synthetic L/C Issuer” means UBS AG, Stamford Branch and its successors (including pursuant to
Section 10.07(j)).



          “Synthetic L/C Lender” means an Extended Synthetic L/C Lender or a Non-Extended Synthetic L/C
Lender.



          “Synthetic L/C Letter of Credit” means a Letter of Credit denominated in Dollars that is
designated, or deemed to be designated, as a “Synthetic L/C Letter of Credit” in accordance
herewith.



          “Synthetic L/C Loan” means a Non-Extended Synthetic L/C Loan.



          “Synthetic L/C Obligations” means, as at any date of determination, the aggregate maximum
amount then available to be drawn under all outstanding Synthetic L/C Letters of Credit (whether or
not such maximum amount is then in effect under any




58











 




such Synthetic L/C Letter of Credit if such maximum amount increases periodically pursuant to
the terms of such Synthetic L/C Letter of Credit) plus the aggregate of all Unreimbursed Amounts in
respect of Synthetic L/C Letters of Credit.




          “Target” means Travelport LLC (formerly known as Cendant Travel Distribution Services Group,
Inc.), a Delaware corporation and an indirect wholly owned subsidiary of Cendant Corporation.



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



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



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



          “Term Lender” means a Tranche B Dollar Term Lender or a Euro Term Lender, as the context may
require.



          “Term Loan” means a Tranche B Dollar Term Loan, a Euro Term Loan or a Tranche S Term Loan, as
the context may require.



          “Test Period” in effect at any time shall mean the most recent period of four consecutive
fiscal quarters of Holdings ended on or prior to such time (taken as one accounting period) in
respect of which financial statements for each quarter or fiscal year in such period have been or
are required to be delivered pursuant to Section 6.01(a) or (b); provided that, prior to the first
date that financial statements have been or are required to be delivered pursuant to Section
6.01(a) or (b), the Test Period in effect shall be the period of four consecutive fiscal quarters
of the Target ended June 30, 2006. A Test Period may be designated by reference to the last day
thereof (i.e., the “March 31, 2007 Test Period” refers to the period of four consecutive fiscal
quarters of Holdings ended March 31, 2007), and a Test Period shall be deemed to end on the last
day thereof.



          “Third Amendment and Restatement Agreement” means the Third Amendment and Restatement
Agreement dated as of October 22, 2010, among the Borrower, Holdings, Intermediate Parent, the
Administrative Agent, the Collateral Agent, the L/C Issuers, the Swing Line Lender, the Syndication
Agent and the other Lenders party thereto.



          “Third Amendment and Restatement Effective Date” has the meaning specified in the Third
Amendment and Restatement Agreement.



          “Threshold Amount” means $36,250,000.



59









 





          “Total Assets” means the total assets of the Borrower, Holdings and Holdings’ Restricted
Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of Holdings
delivered pursuant to Section 6.01(a) or (b) or, for the period prior to the time any such
statements are so delivered pursuant to Section 6.01(a) or (b), the Unaudited Financial Statements.



          “Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated
Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.



          “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations; provided that the amount of Total Outstandings in respect of the Extended Synthetic
L/C Facility, and the portion of Total Outstandings held by any Extended Synthetic L/C Lender,
shall be determined solely on the basis of the Tranche S Term Loans, without duplicative inclusion
of the Extended Synthetic L/C Exposures.



          “Tranche B Dollar Term Commitment” has the meaning specified in the Second Amended and
Restated Credit Agreement.



          “Tranche B Dollar Term Lender” means an Extended Tranche B Dollar Term Lender or a
Non-Extended Tranche B Dollar Term Lender.



          “Tranche B Dollar Term Loan” means an Extended Tranche B Dollar Term Loan or a Non-Extended
Tranche B Dollar Term Loan.



          “Tranche S Collateral Account” means the “Account” as defined in the Tranche S Collateral
Account Agreement, which as of the Third Amendment and Restatement Date is a blocked account
maintained at the Synthetic L/C Issuer under its sole dominion and control that has been initially
funded with the proceeds of the Tranche S Term Loans on the Third Amendment and Restatement
Effective Date pursuant to Section 4(a)(ii) of the Third Amendment and Restatement Agreement.



          “Tranche S Collateral Account Agreement” means the Tranche S Collateral Account Agreement
dated as of the Third Amendment and Restatement Effective Date.



          “Tranche S Collateral Account Amount” means, at any time, the amount of proceeds of the
Tranche S Term Loans deposited in the Tranche S Collateral Account on the Third Amendment and
Restatement Effective Date, less any portion thereof withdrawn therefrom pursuant to Section
2.03(c)(viii) or Section 2.06(d)(iii) as of such time, plus any amounts deposited thereto pursuant
to Section 2.03(c)(viii) or 2.05(a)(v) as of such time.



          “Tranche S Term Loan” means a Tranche S Term Loan that shall have been funded on the Third
Amendment and Restatement Effective Date pursuant to Section 4(a) of the Third Amendment and
Restatement Agreement.



60









 





          “Transaction” means the Original Closing Date Transactions and the Worldspan Transactions.



          “Type” means, with respect to a Loan denominated in Dollars, its character as a Base Rate Loan
or a Eurocurrency Rate Loan.



          “UBS AG, Stamford Branch” means UBS AG, Stamford Branch, and its successors.



          “Unaudited Financial Statements” means the Original Closing Date Unaudited Financial
Statements and the Worldspan Closing Date Unaudited Financial Statements.



          “Uniform Commercial Code” means the Uniform Commercial Code, as the same may from time to time
be in effect in the State of New York, or the Uniform Commercial Code (or similar code or statute)
of another jurisdiction, to the extent it may be required to apply to any item or items of
Collateral.



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



          “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i). Unreimbursed Amount in
respect of any Revolving Letter of Credit shall be reduced to the extent any portion thereof is
refinanced with Revolving Credit Loans as provided in Section 2.03(c). Unreimbursed Amount in
respect of any Synthetic L/C Letter of Credit shall be reduced to the extent any portion thereof
(a) is refinanced with Non-Extended Synthetic L/C Loans as provided in Section 2.03(c)(viii) or (b)
is reimbursed with funds withdrawn from the Tranche S Collateral Account as provided in Section
2.03(c)(viii) but only (except as such term is used in the definition of “Consolidated Total Debt”
herein or in the definition of “Required Collateral Amount” in the Tranche S Collateral Account
Agreement) to the extent the corresponding withdrawal from the Credit-Linked Deposits shall have
resulted in Non-Extended Synthetic L/C Loans pursuant to Section 2.03(c)(viii).



          “Unrestricted Subsidiary” means (a) each Subsidiary of Holdings listed on Schedule
1.01C and (b) any Subsidiary of Holdings designated by the board of directors of Holdings as an
Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Original Closing Date, and any
Subsidiary of such Subsidiary.



          “Unused Synthetic L/C Commitments” means, at any time, the Aggregate Non-Extended Synthetic
L/C Commitments at such time, less the Outstanding Amount of the Non-Extended Synthetic L/C Loans
at such time and the aggregate amount of the Synthetic L/C Obligations allocated to the
Non-Extended Synthetic L/C Lenders at such time.



          “U.S. Lender” has the meaning specified in Section 10.15(b).



          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing: (a) the sum of the



61









 




products obtained by multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including payment at final maturity,
in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment by (b) the then outstanding principal
amount of such Indebtedness.




          “wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person
all of the outstanding Equity Interests of which (other than (a) directors’ qualifying shares and
(b) shares issued to foreign nationals to the extent required by applicable Law) are owned by such
Person and/or by one or more wholly owned Subsidiaries of such Person.



          “Worldspan” means Worldspan Technologies Inc.



          “Worldspan Acquisition” has the meaning specified in the Second Amended and Restated Credit
Agreement.



          “Worldspan Closing Date” has the meaning specified in the Second Amended and Restated Credit
Agreement.



          “Worldspan Closing Date Audited Financial Statements” means (a) the audited combined balance
sheets of the Travelport business of Cendant Corporation as of each of December 31, 2006, 2005 and
2004, and the related audited consolidated statements of income, stockholders’ equity and cash
flows for the Travelport business of Cendant Corporation for the fiscal years ended December 31,
2006, 2005 and 2004, respectively, and (b) the audited consolidated balance sheets of Worldspan and
its Subsidiaries as of each of December 31, 2006, 2005 and 2004, and the related audited
consolidated statements of income and cash flows for Worldspan and its Subsidiaries for the fiscal
years ended December 31, 2006, 2005 and 2004, respectively.



          “Worldspan Closing Date Pro Forma Balance Sheet” has the meaning specified in Section
5.05(a)(iii).



          “Worldspan Closing Date Unaudited Financial Statements” has the meaning specified in the
Second Amended and Restated Credit Agreement.



          “Worldspan Merger Agreement” has the meaning specified in the Second Amended and Restated
Credit Agreement.



          “Worldspan Transactions” has the meaning specified in the Second Amended and Restated Credit
Agreement.



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



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



62









 





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




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




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




               (iv) The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced,
whether in physical or electronic form.



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



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



          SECTION 1.03. Accounting Terms.



          (a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



          (b) Notwithstanding anything to the contrary herein, for purposes of determining compliance
with any test or covenant contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Total Leverage Ratio shall be calculated with respect to such
period and such Specified Transaction on a Pro Forma Basis.



          SECTION 1.04. Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to
be permitted under this Agreement) shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).



          SECTION 1.05. References to Agreements, Laws, Etc. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other



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modifications thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are permitted by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.




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



          SECTION 1.07. Timing of Payment or Performance. When the payment of any obligation
or the performance of any covenant, duty or obligation is stated to be due or performance required
on a day which is not a Business Day, the date of such payment (other than as described in the
definition of Interest Period) or performance shall extend to the immediately succeeding Business
Day.



          SECTION 1.08. Currency Equivalents Generally.



          (a) Any amount specified in this Agreement (other than in Articles II, IX and X or as set
forth in paragraph (b) of this Section) or any of the other Loan Documents to be in Dollars shall
also include the equivalent of such amount in any currency other than Dollars, such equivalent
amount to be determined at the rate of exchange quoted by the Reuters World Currency Page for the
applicable currency at 11:00 a.m. (London time) on such day (or, in the event such rate does not
appear on any Reuters World Currency Page, by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower,
or, in the absence of such agreement, such rate shall instead be the arithmetic average of the spot
rates of exchange of the Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or about 10:00 a.m. (New York
City time) on such date for the purchase of Dollars for delivery two Business Days later); provided
that the determination of any Dollar Amount shall be made in accordance with Section 2.15.
Notwithstanding the foregoing, for purposes of determining compliance with Sections 7.01, 7.02 and
7.03 with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no
Default shall be deemed to have occurred solely as a result of changes in rates of exchange
occurring after the time such Indebtedness or Investment is incurred; provided that, for the
avoidance of doubt, the foregoing provisions of this Section 1.08 shall otherwise apply to such
Sections, including with respect to determining whether any Indebtedness or Investment may be
incurred at any time under such Sections.



          (b) For purposes of determining compliance under Sections 7.02, 7.05, 7.06 and 7.11, any
amount in a currency other than Dollars will be converted to Dollars based on the average Exchange
Rate for such currency for the most recent twelve-month period immediately prior to the date of
determination determined in a manner consistent with that used in calculating EBITDA for the
applicable period; provided, however, that the foregoing shall not be deemed to apply to the
determination of any amount of Indebtedness.



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ARTICLE II




The Commitments and Credit Extensions



          SECTION 2.01. The Loans.



          (a) The Tranche B Dollar Term Borrowings. The Borrower and the Tranche B Dollar Term Lenders
acknowledge the making of the Existing Tranche B Dollar Term Loans under the Original Credit
Agreement or, in the case of the Existing Tranche B Dollar Term Loans that constitute Delayed Draw
Term Loans, the Second Amended and Restated Credit Agreement, and agree that, to the extent
outstanding on the Third Amendment and Restatement Effective Date, the Existing Tranche B Dollar
Term Loans shall continue to be outstanding as Extended Tranche B Dollar Term Loans or Non-Extended
Tranche B Dollar Term Loans, as applicable under the Third Amendment and Restatement Agreement,
pursuant to the terms and conditions of this Agreement and the other Loan Documents. Amounts
repaid or prepaid in respect of the Tranche B Dollar Term Loans may not be reborrowed. Tranche B
Dollar Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.



          (b) The Euro Term Borrowings. The Borrower and the Euro Term Lenders acknowledge the making
of the Existing Euro Term Loans under the Original Credit Agreement, and agree that, to the extent
outstanding on the Third Amendment and Restatement Effective Date, the Existing Euro Term Loans
shall continue to be outstanding as Extended Euro Term Loans or Non-Extended Euro Term Loans, as
applicable under the Third Amendment and Restatement Agreement, pursuant to the terms and
conditions of this Agreement and the other Loan Documents. Amounts repaid or prepaid in respect of
the Euro Term Loans may not be reborrowed. Euro Term Loans must be Eurocurrency Rate Loans, as
further provided herein.



          (c) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein,
(i) each Dollar Revolving Credit Lender severally agrees to make loans denominated in Dollars to
the Borrower as elected by the Borrower pursuant to Section 2.02 (each such loan, a “Dollar
Revolving Credit Loan”) from time to time, on any Business Day until the Maturity Date applicable
with respect to the Revolving Credit Facilities, in an aggregate Dollar Amount not to exceed at any
time outstanding the amount of such Lender’s Dollar Revolving Credit Commitment; provided that
after giving effect to any Dollar Revolving Credit Borrowing, the aggregate Outstanding Amount of
the Dollar Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Dollar Revolving L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Dollar
Revolving Credit Commitment; and (ii) each Alternative Currency Revolving Credit Lender severally
agrees to make loans denominated in an Alternative Currency to the Borrower as elected by the
Borrower pursuant to Section 2.02 (each such loan, an “Alternative Currency Revolving Credit Loan”)
from time to time, on any Business Day until the Maturity Date applicable with respect to the
Revolving Credit Facilities, in an aggregate Dollar Amount not to exceed at any time outstanding
the amount of such Lender’s Alternative Currency Revolving Credit Commitment;



65









 




provided that after giving effect to any Alternative Currency Revolving Credit Borrowing, the
aggregate Outstanding Amount of the Alternative Currency Revolving Credit Loans of any Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all Alternative Currency
Revolving L/C Obligations, shall not exceed such Lender’s Alternative Currency Revolving Credit
Commitment. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.01(c), prepay under
Section 2.05, and reborrow under this Section 2.01(c). Dollar Revolving Credit Loans may be Base
Rate Loans or Eurocurrency Rate Loans, as further provided herein, and Alternative Currency
Revolving Credit Loans must be Eurocurrency Rate Loans, as further provided herein.




          (d) Credit-Linked Deposits and Tranche S Term Loans.




          (i) Each Original Post-First Amendment and Restatement Synthetic L/C Lender and each
New Post-First Amendment and Restatement Synthetic L/C Lender has remitted to the
Administrative Agent prior to the Third Amendment and Restatement Effective Date an amount
in Dollars equal to such Lender’s Original Post-First Amendment and Restatement Synthetic
L/C Commitment or such Lender’s New Post-First Amendment and Restatement Synthetic L/C
Commitment, as applicable, in each case as its “Credit-Linked Deposit”. The Administrative
Agent deposited all such amounts received by it into the Credit-Linked Deposit Account.




          (ii) On the Third Amendment and Restatement Effective Date, pursuant to Section
4(a)(ii) of the Third Amendment and Restatement Agreement, a portion of each Extended
Synthetic L/C Lender’s Existing Credit-Linked Deposit equal to its Extended Synthetic L/C
Commitment was withdrawn from the Credit-Linked Deposit Account and applied to fund such
Lender’s Tranche S Term Loan, and the proceeds of the Tranche S Term Loans were deposited
in the Tranche S Collateral Account. Amounts repaid or prepaid in respect of the Tranche S
Term Loans may not be reborrowed. Tranche S Term Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.




          (iii) Each Non-Extended Synthetic L/C Lender irrevocably and unconditionally agrees
that its Credit-Linked Deposit shall be available (A) to pay to the Synthetic L/C Issuer
such Lender’s Non-Extended Synthetic L/C Pro Rata Share Amount in respect of any
Unreimbursed Amount under any Synthetic L/C Letter of Credit that is not reimbursed by the
Borrower and (B) to fund such Lender’s Non-Extended Synthetic L/C Loans, in each case,
pursuant to Section 2.03(c). Non-Extended Synthetic L/C Loans may be prepaid without
reducing the Non-Extended Synthetic L/C Commitments.




          (iv) No Person (other than the Administrative Agent) shall have the right to make any
withdrawal from the Credit-Linked Deposit Account or to exercise any other right or power
with respect thereto. Each Non-Extended Synthetic L/C Lender agrees that its right, title
and interest in and to the Credit-



66









 






Linked Deposit Account shall be limited to the right to require its Credit-Linked
Deposit to be applied as provided in Section 2.03(c) and that it will have no right to
require the return of its Credit-Linked Deposit other than as expressly provided in Section
2.06. Each Non-Extended Synthetic L/C Lender hereby acknowledges that (i) its
Credit-Linked Deposit constitutes payment for its participations in Synthetic L/C Letters
of Credit issued, deemed issued or to be issued hereunder, (ii) its Credit-Linked Deposit
and any investments made therewith shall secure its obligations to the Synthetic L/C Issuer
hereunder (and each Non-Extended Synthetic L/C Lender hereby grants to the Administrative
Agent, for the benefit of the Synthetic L/C Issuer, a security interest in its
Credit-Linked Deposit and all of its rights in the Credit-Linked Deposit Account to secure
its obligations under Section 2.01(d) and agrees that the Administrative Agent, as holder
of the Credit-Linked Deposits and any investments made therewith, will be acting as
collateral agent for the Synthetic L/C Issuer) and (iii) the Synthetic L/C Issuer will be
issuing, amending, renewing and extending Synthetic L/C Letters of Credit in reliance on
the availability of such Lender’s Credit-Linked Deposit to discharge such Lender’s
obligations in connection with any Unreimbursed Amount in respect thereof in accordance
with Section 2.03(c). The Synthetic L/C Issuer hereby appoints the Administrative Agent as
its collateral agent for the purpose of holding the Credit-Linked Deposits, any investments
made therewith and the Credit-Linked Deposit Account. The Administrative Agent hereby
grants a security interest to the Synthetic L/C Issuer in all of its rights, title and
interest to the Credit-Linked Deposit Account. The funding of the Credit-Linked Deposits
and the agreements with respect thereto set forth in this Agreement constitute arrangements
among the Administrative Agent, the Synthetic L/C Issuer and the Non-Extended Synthetic L/C
Lenders with respect to the funding obligations of such Lenders under this Agreement, and
the Credit-Linked Deposits do not constitute assets of, or loans or extensions of credit
to, any Loan Party. Without limiting the generality of the foregoing, each party hereto
acknowledges and agrees that the Credit-Linked Deposits are and at all times will continue
to be property of the Non-Extended Synthetic L/C Lenders, and that no amount on deposit at
any time in the Credit-Linked Deposit Account shall be the property of any Loan Party,
constitute “Collateral” under the Loan Documents or otherwise be available in any manner to
satisfy any Obligations of any Loan Party under the Loan Documents.




          (v) No Person (other than the Synthetic L/C Issuer) shall have the right to make any
withdrawal from the Tranche S Collateral Account or to exercise any other right or power
with respect thereto. Each party hereto hereby consents to the terms and performance of
the Tranche S Collateral Account Agreement.




          (vi) Each Lender hereby acknowledges that (A) pursuant to the Tranche S Collateral
Account Agreement the Borrower has granted to the Synthetic L/C Issuer a first priority
perfected Lien on the Tranche S Collateral Account, the funds credited thereto and the
proceeds thereof to secure the Borrower’s obligations in respect of the Synthetic L/C
Letters of Credit, which



67









 






Lien inures to the sole benefit of the Synthetic L/C Issuer in its capacity as the
Synthetic L/C Issuer (and not in its capacities as the Administrative Agent or the
Collateral Agent), (B) no Lien created under the Collateral Documents on the Tranche S
Collateral Account, the funds credited thereto or the proceeds thereof will be perfected as
a result of the Tranche S Collateral Account Agreement or any agreements of the Borrower
set forth therein and (C) any Liens created under the Collateral Documents on the Tranche S
Collateral Account, the funds credited thereto or the proceeds thereof that are unperfected
are effectively subordinated to the Lien thereon for the benefit of the Synthetic L/C
Issuer created under the Tranche S Collateral Account Agreement to the extent such Lien is
perfected.



          SECTION 2.02. Borrowings, Conversions and Continuations of Loans.



          (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans,
Revolving Credit Loans or Non-Extended Synthetic L/C Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 12:00 p.m. (New York, New York time or London, England time in
the case of any Borrowing denominated in an Alternative Currency) (i) three (3) Business Days prior
to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in
Dollars or any conversion of Base Rate Loans to Eurocurrency Rate Loans denominated in Dollars,
(ii) four (4) Business Days prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in an Alternative Currency, and (iii) one (1) Business Day
before the requested date of any Borrowing of or conversion to Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to
the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by
a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of (x) $2,500,000 or a whole multiple of
$500,000 in excess thereof in the case of Tranche B Dollar Term Loans and Tranche S Term Loans, (y)
€2,500,000 or a whole multiple of €500,000 in excess thereof in the case of Euro Term Loans or
Alternative Currency Revolving Credit Loans denominated in Euros or (z) £2,500,000 or a whole
multiple of £500,000 in excess thereof in the case of Alternative Currency Revolving Credit Loans
denominated in Sterling. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Term Borrowing, a Dollar Revolving Credit
Borrowing, an Alternative Currency Revolving Credit Borrowing, a conversion of Tranche B Dollar
Term Loans, Tranche S Term Loans, Revolving Credit Loans or Non-Extended Synthetic L/C Loans from
one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount and Class of Loans to be borrowed, converted or continued, (iv) the currency
in which the Loans to be borrowed are to be denominated, (v) the Type of Loans to be borrowed or to
which existing Term Loans, Revolving Credit



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Loans or Non-Extended Synthetic L/C Loans are to be converted, and (vi) if applicable, the
duration of the Interest Period with respect thereto. If with respect to Loans denominated in
Dollars the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a
timely notice requesting a conversion or continuation, then the applicable Term Loans, Revolving
Credit Loans or Non-Extended Synthetic L/C Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period (or fails to give a timely
notice requesting a continuation of Eurocurrency Rate Loans denominated in an Alternative
Currency), it will be deemed to have specified an Interest Period of one (1) month. If no currency
is specified, the requested Borrowing shall be in Dollars.




          (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable Borrowing, and if no
timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate Loans or
continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender
shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of
any Loan denominated in Dollars, and not later than 1:00 p.m. (London time), in the case of any
Loan denominated in an Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.03, the Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of UBS AG, Stamford Branch with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided that if, on the date the
Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are Swing Line
Loans or Revolving L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such Revolving L/C Borrowings, second, to the payment
in full of any such Swing Line Loans, and third, to the Borrower as provided above. The provisions
of this paragraph shall not apply to (i) Non-Extended Synthetic L/C Loans, which shall be made and
applied as set forth in Section 2.03(c), (ii) Revolving Credit Loans deemed requested and made as
set forth in Section 2.03(c) or 2.04(c) or (iii) Tranche S Term Loans, which were made pursuant to
Section 4(a) of the Third Amendment and Restatement Agreement.



          (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the
Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the
existence of an Event of Default, the Administrative Agent or the Required Lenders may require that
no Loans may be converted to or continued as Eurocurrency Rate Loans.



69









 





          (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. The determination of the Eurocurrency Rate by the Administrative Agent shall
be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding,
the Administrative Agent shall notify the Borrower and the Lenders of any change in the UBS AG,
Stamford Branch prime rate used in determining the Base Rate promptly following the public
announcement of such change.



          (e) After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all
conversions of Term Loans, Revolving Credit Loans or Non-Extended Synthetic L/C Loans from one Type
to the other, and all continuations of Term Loans, Revolving Credit Loans or Non-Extended
Synthetic L/C Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in
effect.



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



          (g) Unless the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s portion of such Borrowing, the Administrative Agent may, with the Borrower’s consent,
assume that such Lender has made such portion available to the Administrative Agent on the date of
such Borrowing in accordance with paragraph (b) above, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available, then, to the extent that such
Lender shall not have made such portion available to the Administrative Agent, each of such Lender
and the Borrower severally agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Administrative Agent at (i)
in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation. A certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this Section 2.02(g) shall be conclusive in the absence of manifest error.
If such Lender’s portion of such Borrowing is not made available to the Administrative Agent by
such Lender within three Business Days after the date of such Borrowing, the Administrative Agent
shall also be entitled to recover such amount with interest thereon accruing from the date on which
the Administrative Agent made the funds available to the Borrower at the rate per annum applicable
to ABR Loans under the relevant Facility (except in the case of any Euro Term Loans, in which case
such amount shall bear interest at the rate applicable to Eurocurrency Rate Loans under the
relevant Facility), on demand, from the Borrower. If such Lender shall repay to



70









 




the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s
Loan as part of such Borrowing for purposes of this Agreement, and the Borrower’s obligation to
repay the Administrative Agent such corresponding amount pursuant to this Section 2.02(g) shall
cease.




          SECTION 2.03. Letters of Credit.



          (a) The Letter of Credit Commitments.




          (i) On and after the Original Closing Date, the Existing Letters of Credit will
constitute Letters of Credit under this Agreement and for purposes hereof will be deemed to
have been issued on the Original Closing Date or the Worldspan Closing Date, as applicable.




          (ii) Subject to the terms and conditions set forth herein, (A)(1) each Dollar
Revolving L/C Issuer agrees, in reliance upon the agreements of the other Dollar Revolving
Credit Lenders set forth in this Section 2.03, (x) from time to time on any Business Day
during the period from the Original Closing Date until the Letter of Credit Expiration Date
applicable to Dollar Revolving Letters of Credit, to issue Dollar Revolving Letters of
Credit for the account of the Borrower (provided that any Dollar Revolving Letter of Credit
may be for the benefit of any Subsidiary of the Borrower) and to amend or renew Dollar
Revolving Letters of Credit previously issued by it, in accordance with Section 2.03(b),
and (y) to honor drafts under the Dollar Revolving Letters of Credit and (2) the Dollar
Revolving Credit Lenders severally agree to participate in Dollar Revolving Letters of
Credit issued pursuant to this Section 2.03, (B)(1) each Alternative Currency Revolving L/C
Issuer agrees, in reliance upon the agreements of the other Alternative Currency Revolving
Credit Lenders set forth in this Section 2.03, (x) from time to time on any Business Day
during the period from the Original Closing Date until the Letter of Credit Expiration Date
applicable to Alternative Currency Revolving Letters of Credit, to issue Alternative
Currency Revolving Letters of Credit denominated in an Alternative Currency for the account
of the Borrower (provided that any Alternative Currency Revolving Letter of Credit may be
for the benefit of any Subsidiary of the Borrower) and to amend or renew Alternative
Currency Revolving Letters of Credit previously issued by it, in accordance with Section
2.03(b), and (y) to honor drafts under the Alternative Currency Revolving Letters of Credit
and (2) the Alternative Currency Revolving Credit Lenders severally agree to participate in
Alternative Currency Revolving Letters of Credit issued pursuant to this Section 2.03 and
(C)(1) the Synthetic L/C Issuer agrees, in reliance upon the agreements of the Synthetic
L/C Lenders and the Borrower set forth in this Section 2.03, (x) from time to time on any
Business Day during the period from the First Amendment and Restatement Effective Date
until the Letter of Credit Expiration Date applicable to Letters of Credit issued under the
Synthetic L/C Facilities, to issue Synthetic L/C Letters of Credit for the account of the
Borrower (provided that any Synthetic L/C Letter of Credit may be for the benefit of any
Subsidiary) and to amend or renew Synthetic L/C Letters of Credit previously



71









 






issued by it, in accordance with Section 2.03(b), and (y) to honor drafts under the
Synthetic L/C Letters of Credit and (2) the Synthetic L/C Lenders severally agree to
participate in Synthetic L/C Letters of Credit issued pursuant to this Section 2.03;
provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to participate in any
Letter of Credit, if as of the date of such L/C Credit Extension (I) in the case of the
Revolving Letters of Credit, (x) the Dollar Revolving Credit Exposure of any Lender would
exceed such Lender’s Dollar Revolving Credit Commitment, (y) the Alternative Currency
Revolving Credit Exposure of any Lender would exceed such Lender’s Alternative Currency
Revolving Credit Commitment or (z) the Outstanding Amount of the Dollar Revolving L/C
Obligations would exceed the Dollar Revolving Letter of Credit Sublimit or (II) in the case
of the Synthetic L/C Letters of Credit, (x) the Synthetic L/C Obligations would exceed the
sum of the aggregate amount of the Credit-Linked Deposits and the Tranche S Collateral
Account Amount and (y) in the case of any Synthetic L/C Letter of Credit with an expiry
date extending beyond the day that is five (5) Business Days prior to the scheduled
Maturity Date then in effect for any Synthetic L/C Facility (or, if such day is not a
Business Day, the next preceding Business Day) (such day, the “Synthetic L/C Exposure
Readjustment Date”), the aggregate face amount (determined as the maximum amount thereof
(after giving effect to any prior permanent reductions thereof)) of the Synthetic L/C
Letters of Credit expiring after such Synthetic L/C Exposure Readjustment Date would exceed
the Aggregate Synthetic L/C Commitments that are scheduled to remain in effect after such
scheduled Maturity Date. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. If the Borrower shall fail to specify whether any requested Letter of Credit
denominated in Dollars is to be a Revolving Letter of Credit or a Synthetic L/C Letter of
Credit, then the requested Letter of Credit shall be deemed to be a Synthetic L/C Letter of
Credit unless the issuance thereof would not be permitted by the foregoing provisions of
this paragraph, in which case it shall be deemed to be a Revolving Letter of Credit.
Notwithstanding any such specification or deemed specification, the Borrower may request in
writing that a Letter of Credit issued under any Facility be deemed to be issued under any
other Facility (and such redesignation shall become effective on the date of receipt by the
Administrative Agent of such written request, which shall be a Business Day) so long as at
the time of the Administrative Agent’s receipt of such request, the issuance of such a
Letter of Credit would be permitted under such Facility by the foregoing provisions of this
paragraph. All Synthetic L/C Letters of Credit will be denominated in Dollars.




          (iii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:




          (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such



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L/C Issuer from issuing such Letter of Credit, or any Law applicable to such
L/C Issuer or any directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or
direct that such L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such L/C
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such L/C Issuer is not otherwise compensated hereunder) not
in effect on the Original Closing Date, or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Original Closing
Date (for which such L/C Issuer is not otherwise compensated hereunder);




          (B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit (other than the Letters of Credit listed on Schedule
2.03(a)(iii)(B)) would occur more than twelve months after the date of issuance
or last renewal, unless the Required Lenders have approved such expiry date;




          (C) the expiry date of such requested Letter of Credit would occur after the
applicable Letter of Credit Expiration Date, unless all the Lenders of the
applicable Class or Classes shall have approved such expiry date; or




          (D) the issuance of such Letter of Credit would violate any Laws binding upon
such L/C Issuer.




          (iv) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.



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




          (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the relevant L/C Issuer and the Administrative Agent not later than 12:00 p.m. at least
two (2) Business Days prior to the proposed issuance date or date of amendment, as the case
may be, or, in each case, such later date and time as the relevant L/C Issuer may agree in
a particular instance in its sole discretion. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day);



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(b) the amount thereof; (c) the expiry date thereof; (d) the name and address of the
beneficiary thereof; (e) the documents to be presented by such beneficiary in case of any
drawing thereunder; (f) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (g) the currency in which the requested
Letter of Credit will be denominated, (h) in the case of any Letter of Credit denominated
in Dollars, whether such Letter of Credit is to be a Revolving Letter of Credit or a
Synthetic L/C Letter of Credit (which designation shall be made in accordance with this
Agreement); and (i) such other matters as the relevant L/C Issuer may reasonably request.
In the case of a request for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail reasonably satisfactory to the
relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of
amendment thereof (which shall be a Business Day); (3) the nature of the proposed
amendment; and (4) such other matters as the relevant L/C Issuer may reasonably request.




          (ii) Promptly after receipt of any Letter of Credit Application, the relevant L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the relevant L/C Issuer of confirmation from the Administrative
Agent that the requested issuance or amendment is permitted in accordance with the terms
hereof, subject to the terms and conditions hereof such L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be. Immediately upon the issuance of (x) each Dollar Revolving
Letter of Credit, each Dollar Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, acquire from the relevant L/C Issuer a risk
participation in such Dollar Revolving Letter of Credit in an amount equal to the product
of such Dollar Revolving Credit Lender’s Pro Rata Share times the amount of such Dollar
Revolving Letter of Credit, (y) each Alternative Currency Revolving Letter of Credit, each
Alternative Currency Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, acquire from the relevant L/C Issuer a risk participation in
such Alternative Currency Revolving Letter of Credit in an amount equal to the product of
such Alternative Currency Revolving Credit Lender’s Pro Rata Share times the amount of such
Alternative Currency Revolving Letter of Credit and (z) each Synthetic L/C Letter of
Credit, each Synthetic L/C Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, acquire from the Synthetic L/C Issuer a risk participation in
such Synthetic L/C Letter of Credit in an amount equal to the product of such Synthetic L/C
Lender’s Pro Rata Share (determined on the basis of the aggregate amount of its Synthetic
L/C Commitments as a percentage of the Aggregate Synthetic L/C Commitments) times the
amount of such Synthetic L/C Letter of Credit.



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          (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic renewal
provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal
Letter of Credit must permit the relevant L/C Issuer to prevent any such renewal at least
once in each twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the
Borrower shall not be required to make a specific request to the relevant L/C Issuer for
any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the applicable
Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date not later than
the applicable Letter of Credit Expiration Date; provided that the relevant L/C Issuer
shall not permit any such renewal if (A) the relevant L/C Issuer has determined that it
would have no obligation at such time to issue such Letter of Credit in its renewed form
under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or 2.03(a)(iii),
or otherwise) or (B) the relevant L/C Issuer has received notice (which may be by telephone
or in writing) on or before the day that is five (5) Business Days before the Nonrenewal
Notice Date from the Administrative Agent, any Revolving Credit Lender or any Synthetic L/C
Lender, as applicable, or the Borrower that one or more of the applicable conditions
specified in Section 4.03 is not then satisfied.




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



          (c) Drawings and Reimbursements; Funding of Participations.




          (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the relevant L/C Issuer shall notify promptly the
Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the Business
Day immediately following the date of any payment by an L/C Issuer under a Letter of Credit
(each such date, an “Honor Date”), the Borrower shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly
notify each Appropriate Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the Dollar Amount thereof in the case of an Alternative Currency)
(the “Unreimbursed Amount”), and the amount of such Appropriate Lender’s Pro Rata Share
thereof (determined, in the case of an Unreimbursed Amount under a Synthetic L/C Letter of
Credit, on the basis of the aggregate amount of its Synthetic L/C Commitments as a
percentage of the



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Aggregate Synthetic L/C Commitments). In such event, (x) in the case of an
Unreimbursed Amount under a Dollar Revolving Letter of Credit, the Borrower shall be deemed
to have requested a Dollar Revolving Credit Borrowing of Base Rate Loans, (y) in the case
of an Unreimbursed Amount under an Alternative Currency Revolving Letter of Credit, the
Borrower shall be deemed to have requested an Alternative Currency Revolving Credit
Borrowing of Eurocurrency Rate Loans and (z) in the case of an Unreimbursed Amount under a
Synthetic L/C Letter of Credit, the Borrower shall be deemed to have requested from the
Non-Extended Synthetic L/C Lenders a Non-Extended Synthetic L/C Borrowing of Eurocurrency
Rate Loans as described in clause (viii) below, in each case to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount (less, in the case of an Unreimbursed
Amount under a Synthetic L/C Letter of Credit, the aggregate amount directed to be
withdrawn from the Tranche S Collateral Account on account thereof pursuant to Section
2.03(c)(viii)(B)), without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Eurocurrency Rate Loans or Base Rate Loans, but subject, in
each case, to the conditions set forth in Section 4.03 (other than the delivery of a
Committed Loan Notice and any condition that would not be satisfied solely as a result of
the failure by the Borrower to reimburse such Unreimbursed Amount in accordance with this
paragraph) and provided that (A) in the case of any such request for a Dollar Revolving
Credit Borrowing, after giving effect thereto, the aggregate Outstanding Amount of the
Dollar Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all Dollar Revolving L/C Obligations, plus such Lender’s
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Dollar Revolving Credit Commitment, (B) in the case of any such request for an
Alternative Currency Revolving Credit Borrowing, after giving effect thereto, the aggregate
Outstanding Amount of the Alternative Currency Revolving Credit Loans of any Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all Alternative
Currency Revolving L/C Obligations shall not exceed such Lender’s Alternative Currency
Revolving Credit Commitment and (C) in the case of any such request for a Non-Extended
Synthetic L/C Borrowing, after giving effect thereto, the Non-Extended Synthetic L/C
Exposure of any Lender shall not exceed such Lender’s Non-Extended Synthetic L/C
Commitment. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.




          (ii) Each Dollar Revolving Credit Lender (including any such Lender acting as an L/C
Issuer) shall, upon any notice pursuant to Section 2.03(c)(i), make funds available to the
Administrative Agent for the account of the relevant Revolving L/C Issuer at the
Administrative Agent’s Office for payments in an amount equal to its Pro Rata Share of any
Unreimbursed Amount in respect of a Dollar Revolving Letter of Credit not later than 1:00
p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Dollar



76









 






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




          (iii) With respect to any Unreimbursed Amount in respect of a Dollar Revolving Letter
of Credit that is not fully refinanced by a Dollar Revolving Credit Borrowing of Base Rate
Loans because the applicable conditions set forth in Section 4.03 cannot be satisfied or
for any other reason, the Borrower shall be deemed to have incurred from the relevant
Revolving L/C Issuer a Dollar Revolving L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which Dollar Revolving L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default Rate. In
such event, each Dollar Revolving Credit Lender’s payment to the Administrative Agent for
the account of the relevant Revolving L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such Dollar Revolving L/C Borrowing and
shall constitute a Dollar Revolving L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03. With respect to any Unreimbursed Amount
in respect of an Alternative Currency Revolving Letter of Credit that is not fully
refinanced by an Alternative Currency Revolving Credit Borrowing of Base Rate Loans because
the applicable conditions set forth in Section 4.03 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the relevant Revolving L/C
Issuer an Alternative Currency Revolving L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which Alternative Currency Revolving L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Alternative Currency Revolving Credit Lender’s payment
to the Administrative Agent for the account of the relevant Revolving L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such
Alternative Currency Revolving L/C Borrowing and shall constitute an Alternative Currency
Revolving L/C Advance from such Lender in satisfaction of its participation obligation
under this Section 2.03.




          (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or Revolving
L/C Advance pursuant to this Section 2.03(c) to



77









 






reimburse the relevant Revolving L/C Issuer for any amount drawn under any Revolving
Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall
be solely for the account of the relevant Revolving L/C Issuer.




          (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or
Revolving L/C Advances to reimburse a Revolving L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the relevant
Revolving L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default; or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided that each Revolving Credit
Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.03 (other than delivery by the Borrower of
a Committed Loan Notice and any condition that would not be satisfied solely as a result of
the failure by the Borrower to reimburse the applicable Unreimbursed Amount in accordance
with Section 2.03(c)(i)). No such making of a Revolving L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the relevant Revolving L/C
Issuer for the amount of any payment made by such Revolving L/C Issuer under any Revolving
Letter of Credit, together with interest as provided herein.




          (vi) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the relevant Revolving L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), such Revolving L/C Issuer shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to such Revolving L/C Issuer at a rate per annum
equal to the applicable Overnight Rate from time to time in effect. A certificate of the
relevant Revolving L/C Issuer submitted to any Revolving Credit Lender (through the
Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi)
shall be conclusive absent manifest error.




          (vii) If, at any time after a Revolving L/C Issuer has made a payment under any
Revolving Letter of Credit and has received from any Revolving Credit Lender such Lender’s
Revolving L/C Advance in respect of such payment in accordance with this Section 2.03(c),
the Administrative Agent receives for the account of such Revolving L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether directly from
the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s Revolving L/C



78









 






Advance was outstanding) in the same funds as those received by the Administrative
Agent.




          (viii) If the Synthetic L/C Issuer shall not have received from the Borrower the
payment required to be made by Section 2.03(c)(i) with respect to any Synthetic L/C Letter
of Credit within the time specified in such Section, the Synthetic L/C Issuer will promptly
notify the Administrative Agent of the Unreimbursed Amount. In each such event:




          (A) the Administrative Agent will promptly notify each Non-Extended Synthetic
L/C Lender of such Unreimbursed Amount and of such Lender’s Non-Extended Synthetic
L/C Pro Rata Share Amount with respect thereto, and each Non-Extended Synthetic L/C
Lender hereby authorizes and directs the Administrative Agent to reimburse the
Synthetic L/C Issuer, from such Lender’s Credit-Linked Deposit, in an amount equal
to such Lender’s Non-Extended Synthetic L/C Pro Rata Share Amount, and the
Administrative Agent will promptly pay to the Synthetic L/C Issuer such amount,
which payment shall reduce such Lender’s Credit-Linked Deposit in a like amount.
Upon any such payment, each Non-Extended Synthetic L/C Lender shall be deemed to
have made a Non-Extended Synthetic L/C Loan in an amount equal to its Non-Extended
Synthetic L/C Pro Rata Share Amount, which Non-Extended Synthetic L/C Loans shall
initially be Eurocurrency Rate Loans having Interest Periods set forth in clause
(ix) below; provided, however, that if the conditions precedent to borrowing set
forth in Section 4.03 have not been satisfied (other than delivery of a Committed
Loan Notice or any condition that is not satisfied solely as a result of the
failure by the Borrower to reimburse the applicable Unreimbursed Amount in
accordance with Section 2.03(c)(i)), then payment of such Non-Extended Synthetic
L/C Pro Rata Share Amount shall not be deemed to constitute Non-Extended Synthetic
L/C Loans and shall not relieve the Borrower of its obligation to reimburse such
Unreimbursed Amount; and




          (B) the Borrower hereby authorizes and directs the Synthetic L/C Issuer to
withdraw from the Tranche S Collateral Account in respect of each Extended
Synthetic L/C Lender’s participation in such Unreimbursed Amount an amount equal to
such Lender’s Extended Synthetic L/C Pro Rata Share Amount, which amount shall
solely be utilized to reimburse the Synthetic L/C Issuer for the applicable portion
of such Unreimbursed Amount. The Administrative Agent shall promptly upon request
advise the Synthetic L/C Issuer of the aggregate amount of any such permitted
withdrawal, and the Synthetic L/C Issuer shall promptly advise the Administrative
Agent of the amount of any such reimbursement it shall effect with the proceeds of
any such withdrawal.




Notwithstanding anything herein to the contrary, (x) the funding obligation of each
Non-Extended Synthetic L/C Lender in respect of its participation in



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Synthetic L/C Letters of Credit shall have been satisfied in full upon the funding of its
Credit-Linked Deposit and (y) the funding obligation of each Extended Synthetic L/C Lender
in respect of its participation in Synthetic L/C Letters of Credit shall have been
satisfied in full upon the funding of its Tranche S Term Loan. Any amounts received by the
Administrative Agent thereafter pursuant to Section 2.03(c) in respect of an Unreimbursed
Amount under a Synthetic L/C Letter of Credit will be promptly remitted by the
Administrative Agent to the Credit-Linked Deposit Account, for the ratable account of the
Non-Extended Synthetic L/C Lenders, and the Tranche S Collateral Account (such remittance
to be allocated between the Credit-Linked Deposit Account and the Tranche S Collateral
Account ratably) (it being understood that, thereafter, such amounts will be available to
reimburse the Synthetic L/C Issuer in accordance with this Section 2.03).




          (ix) On each date on which the Administrative Agent charges the Credit-Linked Deposit
Account to reimburse an Unreimbursed Amount in respect of a Synthetic L/C Letter of Credit
as provided in Section 2.03(c)(viii), (A) if such amount is deemed to constitute
Non-Extended Synthetic L/C Loans, the Borrower shall have the right either to reimburse
such amount or to allow such amount to remain outstanding as Non-Extended Synthetic L/C
Loans with an initial Interest Period coincident with the then-applicable Interest Periods
for the Credit-Linked Deposits, subject to subsequent conversion in accordance with Section
2.02, and (B) if such amount is not deemed to constitute Non-Extended Synthetic L/C Loans,
then such amount shall be deemed to be payment in respect of the Non-Extended Synthetic L/C
Lenders’ participations in such Unreimbursed Amount and such Unreimbursed Amount (to the
extent of such participations) shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate (which rate shall be determined by reference to
the Applicable Rate that would have been applicable to the Non-Extended Synthetic L/C
Loans), with such interest accruing for the account of the Non-Extended Synthetic L/C
Lenders that shall have been deemed to have made such payment. For the avoidance of doubt,
no interest shall accrue and be payable to Extended Synthetic L/C Lenders in respect of the
portion of any Unreimbursed Amount that is allocable to the Extended Synthetic L/C Lenders
and funded with funds withdrawn from the Tranche S Collateral Account, other than the
interest payable in respect of the Tranche S Term Loans.




          (x) If any payment received by the Administrative Agent for the account of an L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement entered into
by such L/C Issuer in its discretion), (A) in the case of a Revolving Letter of Credit,
each Revolving Credit Lender shall pay to the Administrative Agent for the account of such
Revolving L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in
effect and (B) in the case of a Synthetic L/C Letter of Credit, (1) each Non-Extended



80









 






Synthetic L/C Lender hereby authorizes and directs the Administrative Agent to
reimburse the Synthetic L/C Issuer, from such Lender’s Credit-Linked Deposits, in an amount
equal to such Lender’s Non-Extended Synthetic L/C Percentage of its Pro Rata Share
(determined on the basis of the aggregate amount of its Synthetic L/C Commitments as a
percentage of the Aggregate Synthetic L/C Commitments) of such returned amount and (2) the
Borrower hereby authorizes the Synthetic L/C Issuer to reimburse itself from the Tranche S
Collateral Account in an amount equal to each Extended Synthetic L/C Lender’s Extended
Synthetic L/C Percentage of its Pro Rata Share (determined on the basis of the aggregate
amount of its Synthetic L/C Commitments as a percentage of the Aggregate Synthetic L/C
Commitments) of such returned amount, in each case plus interest thereon from the date of
such return to the date such amount is so reimbursed, at a rate per annum equal to the
Eurocurrency Rate for Eurocurrency Rate Loans denominated in Dollars.



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




          (i) any lack of validity or enforceability of such Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto;




          (ii) the existence of any claim, counterclaim, setoff, defense or other right that
any Loan Party 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 relevant L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




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




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



81









 






          (v) any exchange, release or nonperfection of any Collateral, or any release or
amendment or waiver of or consent to departure from the Guaranty or any other guarantee,
for all or any of the Obligations of any Loan Party in respect of such Letter of Credit; or




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


provided that the foregoing shall not excuse any L/C Issuer from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in respect of which are
waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are
caused by such L/C Issuer’s gross negligence or willful misconduct when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms thereof.




          (e) Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any drawing
under a Letter of Credit, the relevant L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, any
Agent-Related Person nor any of the respective correspondents, participants or assignees of any L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at law or under any
other agreement. None of the L/C Issuers, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any
of the matters described in clauses (i) through (iii) of Section 2.03(e); provided that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer,
and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C
Issuer’s willful or grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits



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thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.




          (f) Cash Collateral. (i) If any Event of Default occurs and is continuing and the
Administrative Agent or the Required Lenders, as applicable, require the Borrower to Cash
Collateralize the Revolving L/C Obligations pursuant to Section 8.02(c) or (ii) an Event of Default
set forth under Section 8.01(f) or (g) occurs and is continuing, then the Borrower shall Cash
Collateralize the then Outstanding Amount of all Revolving L/C Obligations (in an amount equal to
105% of such Outstanding Amount determined as of the date of such Event of Default), and shall do
so not later than 2:00 p.m., New York City time, on (x) in the case of the immediately preceding
clause (i), (1) the Business Day that the Borrower receives notice thereof, if such notice is
received on such day prior to 12:00 Noon, New York City time, or (2) if clause (1) above does not
apply, the Business Day immediately following the day on which the Borrower receives such notice
and (y) in the case of the immediately preceding clause (ii), the Business Day on which an Event of
Default set forth under Section 8.01(f) or (g) occurs or, if such day is not a Business Day, the
Business Day immediately succeeding such day. For purposes hereof, “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit of the relevant
Revolving L/C Issuer and the Revolving Credit Lenders, as collateral for the Revolving L/C
Obligations, cash or deposit account balances (“Cash Collateral”) pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent and the relevant Revolving L/C
Issuer (which documents are hereby consented to by the Revolving Credit Lenders). Derivatives of
such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for
the benefit of the L/C Issuers and the Revolving Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall
be maintained in blocked accounts at UBS AG, Stamford Branch and may be invested in readily
available Cash Equivalents. If at any time the Administrative Agent determines that any funds held
as Cash Collateral are subject to any right or claim of any Person other than the Administrative
Agent (on behalf of the Secured Parties) or that the total amount of such funds is less than 105%
of the aggregate Outstanding Amount of all Revolving L/C Obligations, the Borrower will, forthwith
upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the deposit accounts at UBS AG, Stamford Branch as aforesaid, an amount equal
to the excess of (a) 105% of such aggregate Outstanding Amount over (b) the total amount of funds,
if any, then held as Cash Collateral that the Administrative Agent reasonably determines to be free
and clear of any such right and claim. Upon the drawing of any Revolving Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted
under applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount of any Cash
Collateral exceeds 105% of the then Outstanding Amount of such Revolving L/C Obligations and so
long as no Event of Default has occurred and is continuing, the excess shall be refunded to the
Borrower. If such Event of Default is cured or waived and no other Event of Default is then
occurring and continuing, the amount of any Cash Collateral shall be refunded to the Borrower.




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          (g) Letter of Credit Fees.




          (i) The Borrower shall pay to the Administrative Agent for the account of each Dollar
Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for
each Dollar Revolving Letter of Credit issued pursuant to this Agreement equal to the
Applicable Rate times the daily maximum amount then available to be drawn under such Dollar
Revolving Letter of Credit (whether or not such maximum amount is then in effect under such
Dollar Revolving Letter of Credit if such maximum amount increases periodically pursuant to
the terms of such Dollar Revolving Letter of Credit). Such letter of credit fees shall be
computed on a quarterly basis in arrears. Such letter of credit fees shall be due and
payable in Dollars on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the issuance of such
Dollar Revolving Letter of Credit, on the Letter of Credit Expiration Date relating to
Dollar Revolving Letters of Credit and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each Dollar Revolving
Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period in such quarter during which such Applicable Rate was in effect.




          (ii) The Borrower shall pay to the Administrative Agent for the account of each
Alternative Currency Revolving Credit Lender in accordance with its Pro Rata Share a Letter
of Credit fee for each Alternative Currency Revolving Letter of Credit issued pursuant to
this Agreement equal to the Applicable Rate times the daily maximum amount then available
to be drawn under such Alternative Currency Revolving Letter of Credit (whether or not such
maximum amount is then in effect under such Alternative Currency Revolving Letter of Credit
if such maximum amount increases periodically pursuant to the terms of such Alternative
Currency Revolving Letter of Credit). Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable in Dollars
on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Alternative
Currency Revolving Letter of Credit, on the Letter of Credit Expiration Date relating to
Alternative Currency Revolving Letters of Credit and thereafter on demand. If there is any
change in the Applicable Rate during any quarter, the daily maximum amount of each
Alternative Currency Revolving Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period in such quarter during which such Applicable
Rate was in effect.



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



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with the first such date to occur after the issuance of such Revolving Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrower shall pay
directly to each L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and charges are
due and payable within ten (10) Business Days of demand and are nonrefundable. The Borrower shall
also pay to the L/C Issuers such other fees as may be agreed to by the Borrower and the applicable
L/C Issuer in respect of Letters of Credit issued by such L/C Issuer.




          (i) Conflict with Letter of Credit Application. Notwithstanding anything else to the
contrary in any Letter of Credit Application, in the event of any conflict between the terms hereof
and the terms of any Letter of Credit Application, the terms hereof shall control.



          (j) Addition of a Revolving L/C Issuer.




          (i) A Dollar Revolving Credit Lender may become an additional Dollar Revolving L/C
Issuer hereunder pursuant to a written agreement among the Borrower, the Administrative
Agent and such Dollar Revolving Credit Lender. The Administrative Agent shall notify the
Dollar Revolving Credit Lenders of any such additional Dollar Revolving L/C Issuer.




          (ii) An Alternative Currency Revolving Credit Lender may become an additional
Alternative Currency Revolving L/C Issuer hereunder pursuant to a written agreement among
the Borrower, the Administrative Agent and such Alternative Currency Revolving Credit
Lender. The Administrative Agent shall notify the Alternative Currency Revolving Credit
Lenders of any such additional Alternative Currency Revolving L/C Issuer.



          (k) Credit-Linked Deposit Account.




          (i) Each of the Administrative Agent, the Synthetic L/C Issuer and each Non-Extended
Synthetic L/C Lender hereby acknowledges and agrees that (x) each Non-Extended Synthetic
L/C Lender or its predecessor in interest has funded its Credit-Linked Deposit to the
Administrative Agent for application in the manner contemplated by Section 2.03(c)(viii)
and (y) the Administrative Agent may invest the Credit-Linked Deposits in such investments
as may be determined from time to time by the Administrative Agent. The Administrative
Agent hereby agrees to pay to each Non-Extended Synthetic L/C Lender, on each Interest
Payment Date for the Credit-Linked Deposits, interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) on the amount of such Non-Extended
Synthetic L/C Lender’s Pro Rata Share (determined on the basis of its Non-Extended
Synthetic L/C Commitment as a percentage of the Aggregate Non-Extended Synthetic L/C
Commitments) of the aggregate amount of the Credit-Linked Deposits during such Interest
Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period less the
Credit-Linked



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Deposit Cost Amount. With respect to any Interest Period during which a Non-Extended
Synthetic L/C Loan is deemed made, the Administrative Agent shall determine the amount of
interest payable by the Borrower on such Non-Extended Synthetic L/C Loan for the portion of
such Interest Period during which such Non-Extended Synthetic L/C Loan is outstanding and
the amount of interest payable by the Administrative Agent on the Credit-Linked Deposits
during such Interest Period pursuant to the applicable provisions of this Agreement, and
such determination shall be conclusive absent manifest error.




          (ii) None of Holdings, the Borrower or any Subsidiary shall have any right, title or
interest in or to the Credit-Linked Deposit Account or the Credit-Linked Deposits or
obligations with respect thereto other than as expressly provided in this Agreement.
Without limiting the foregoing, the obligation to return the Credit-Linked Deposits to the
Non-Extended Synthetic L/C Lenders is solely an obligation of the Administrative Agent, and
none of Holdings, the Borrower or any Subsidiary shall have any liability or obligation in
respect of the principal amount of the Credit-Linked Deposits.



          (l) Synthetic L/C Facilities. Notwithstanding anything to the contrary, the Letters of
Credit under the Synthetic L/C Facilities shall only be issued by the Synthetic L/C Issuer.



          SECTION 2.04. Swing Line Loans.



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



86









 




such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times
the amount of such Swing Line Loan.




          (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000 (and any amount in excess of $100,000 shall be an
integral multiple of $25,000), and (ii) the requested borrowing date, which shall be a Business
Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender
and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender
of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Dollar Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing
(A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations
set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Section 4.03 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the Borrower.



          (c) Refinancing of Swing Line Loans.




          (i) The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Dollar Revolving Credit Lender make a Dollar
Revolving Credit Loan that is a Base Rate Loan in an amount equal to such Lender’s Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate Loans, but
subject to the conditions set forth in Section 4.03 and provided that after giving effect
thereto, the aggregate Outstanding Amount of the Dollar Revolving Credit Loans of any
Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Dollar
Revolving L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Dollar Revolving Credit
Commitment. The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the



87









 






Administrative Agent.
Each Dollar Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan
Notice available to the Administrative Agent in Same Day Funds for the account of the Swing
Line Lender at the Administrative Agent’s Office for Dollar denominated payments not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Dollar Revolving Credit Lender that so makes funds available
shall be deemed to have made a Dollar Revolving Credit Loan that is a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.




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




          (iii) If any Dollar Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the
time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the applicable Overnight Rate from time to time in effect. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest error.




          (iv) Each Dollar Revolving Credit Lender’s obligation to make Dollar Revolving Credit
Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided
that each Dollar Revolving Credit Lender’s obligation to make Dollar Revolving Credit Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.03.
No such funding of risk participations shall relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as provided herein.



88









 





          (d) Repayment of Participations.




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




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



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



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



          SECTION 2.05. Prepayments.



          (a) Optional.




          (i) The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Term Loans of any Class, Revolving Credit Loans of any
Class and Non-Extended Synthetic L/C Loans in whole or in part without premium or penalty;
provided that (A) no prepayment of the Extended Tranche B Dollar Term Loans shall be made
pursuant to this paragraph unless the remaining Non-Extended Tranche B Dollar Term Loans,
if any, shall be prepaid at least ratably, (B) no prepayment of the Extended Euro Term
Loans shall be made pursuant to this paragraph unless the remaining Non-Extended Euro Term
Loans, if any, shall be prepaid at least ratably, (C) no prepayment of the Tranche S Term
Loans shall be made pursuant to this paragraph unless (1) the Extended Synthetic L/C
Commitments are reduced in a like amount and (2) the Non-Extended Synthetic L/C Commitments
are reduced



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at least ratably and (D) prepayments of Non-Extended Synthetic L/C Loans shall comply
with clause (v) below; provided further that (1) such notice must be received by the
Administrative Agent not later than 12:00 p.m. (New York, New York time or London, England
time in the case of Loans denominated in an Alternative Currency) (A) three (3) Business
Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B)
four (4) Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in an Alternative Currency and (C) on the date of prepayment of Base Rate
Loans; (2) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of (x)
$2,500,000 or a whole multiple of $500,000 in excess thereof in the case of Tranche B
Dollar Term Loans, (y) €2,500,000 or a whole multiple of €500,000 in excess thereof in the
case of Euro Term Loans or Alternative Currency Revolving Credit Loans denominated in Euros
or (z) £2,500,000 or a whole multiple of £500,000 in excess thereof in the case of
Alternative Currency Revolving Credit Loans denominated in Sterling; and (3) any prepayment
of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding (it being understood that Base Rate Loans shall be denominated in Dollars
only). Each such notice shall specify the date and amount of such prepayment and the
Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly
notify each Appropriate Lender of its receipt of each such notice, and of the amount of
such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each prepayment of principal of, and
interest on, Alternative Currency Revolving Credit Loans shall be made in the relevant
Alternative Currency (even if the Borrower is required to convert currency to do so). Each
prepayment of the Loans pursuant to this Section 2.05(a) shall be paid to the Appropriate
Lenders in accordance with their respective Pro Rata Shares.




          (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line
Loans in whole or in part without premium or penalty; provided that (1) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the date of the prepayment, and (2) any such prepayment shall be in a minimum principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof or, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. All Swing Line Loans shall be denominated in
Dollars only.



90









 






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




          (iv) Each voluntary prepayment of Term Loans of any Class pursuant to this Section
2.05(a) shall be applied to repayments thereof required pursuant to Section 2.07 as
directed by the Borrower.




          (v) Voluntary prepayments of Non-Extended Synthetic L/C Loans made other than in
connection with a corresponding reduction of the Non-Extended Synthetic L/C Commitments
shall be made to the Administrative Agent, which shall promptly remit the same to the
Credit-Linked Deposit Account for the ratable account of the Non-Extended Synthetic L/C
Lenders (it being understood that, thereafter, such amounts will be available to reimburse
the Synthetic L/C Issuer in accordance with Section 2.03); provided that no such prepayment
and remittance to the Credit-Linked Deposit Account may be made unless the Borrower shall
simultaneously make a ratable deposit in the Tranche S Collateral Account.



          (b) Mandatory. The provisions of this paragraph (b) shall not apply to the Tranche S Term
Loans, and each reference in this paragraph (b) to “Term Loans” shall accordingly be deemed to
exclude the Tranche S Term Loans.




          (i) Within five (5) Business Days after financial statements have been delivered
pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered
pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate Dollar
Amount of Term Loans equal to (A) 50% (such percentage as it may be reduced as described
below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by
such financial statements (commencing with the fiscal year ended December 31, 2007)
minus (B) the sum of (i) all voluntary prepayments of Term Loans during such fiscal
year and (ii) all voluntary prepayments of Revolving Credit Loans during such fiscal year
to the extent the Revolving Credit Commitments are permanently reduced by the amount of
such payments, in the case of each of the immediately preceding clauses (i) and (ii), to
the extent such prepayments are not funded with the proceeds of Indebtedness; provided that
(x) the ECF Percentage shall be 25% if the Total Leverage Ratio for the fiscal year covered
by such financial statements was less than 4.25:1 and greater than or equal to 3.25:1 and
(y) the ECF Percentage shall be 0% if the Total Leverage Ratio for the fiscal year covered
by such financial statements was less than 3.25:1.




          (ii) (A) If (x) Holdings, the Borrower or any Restricted Subsidiary Disposes of any
property or assets (other than any Disposition of any property or assets permitted by
Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition by any Restricted
Subsidiary to a Loan Party), (e), (g)



91









 






or (h)) or (y) any Casualty Event occurs, which in the aggregate results in the
realization or receipt by Holdings, the Borrower or such Restricted Subsidiary of Net Cash
Proceeds, the Borrower shall cause to be prepaid on or prior to the date which is ten (10)
Business Days after the date of the realization or receipt of such Net Cash Proceeds an
aggregate Dollar Amount of Term Loans equal to 100% (or, in the case of a Disposition made
solely pursuant to Section 7.05(o), such lesser percentage of Net Cash Proceeds as may be
specified in Section 7.05(o) with respect to such Disposition) of all Net Cash Proceeds
realized or received; provided that, other than in the case of a Disposition made pursuant
to Section 7.05(n), no such prepayment shall be required pursuant to this Section
2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower
shall have, on or prior to such date, given written notice to the Administrative Agent of
its intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be
provided if no Event of Default has occurred and is then continuing).




          (B) With respect to any Net Cash Proceeds realized or received with respect
to any Disposition (other than (I) any Disposition specifically excluded from the
application of Section 2.05(b)(ii)(A) or (II) any Disposition pursuant to Section
7.05(n)) or any Casualty Event, at the option of the Borrower, the Borrower may
reinvest all or any portion of such Net Cash Proceeds in assets useful for the
business of Holdings and/or its Subsidiaries within (x) fifteen (15) months
following receipt of such Net Cash Proceeds or (y) if the Borrower enters into a
legally binding commitment to reinvest such Net Cash Proceeds within fifteen (15)
months following receipt thereof, within one hundred and eighty (180) days of the
date of such legally binding commitment; provided that (i) so long as an Event of
Default shall have occurred and be continuing, the Borrower (x) shall not be
permitted to make any such reinvestments (other than pursuant to a legally binding
commitment that the Borrower entered into at a time when no Event of Default is
continuing) and (y) shall not be required to apply such Net Cash Proceeds which
have been previously applied to prepay Revolving Credit Loans to the prepayment of
Term Loans until such time as the relevant investment period has expired and no
Event of Default is continuing and (ii) if any Net Cash Proceeds are no longer
intended to be or cannot be so reinvested at any time after delivery of a notice of
reinvestment election, an amount equal to any such Net Cash Proceeds shall be
applied within five (5) Business Days after the Borrower reasonably determines that
such Net Cash Proceeds are no longer intended to be or cannot be so reinvested to
the prepayment of the Term Loans as set forth in this Section 2.05(b).




          (iii) If Holdings, the Borrower or any Restricted Subsidiary incurs or issues any
Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the
Borrower shall cause to be prepaid an aggregate Dollar Amount of Term Loans equal to 100%
of all Net Cash Proceeds received



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therefrom on or prior to the date which is five (5) Business Days after the receipt of
such Net Cash Proceeds.




          (iv) If for any reason the aggregate Dollar Revolving Credit Exposures at any time
exceed the aggregate Dollar Revolving Credit Commitments then in effect, the Borrower shall
promptly prepay or cause to be promptly prepaid Dollar Revolving Credit Loans and Swing
Line Loans and/or Cash Collateralize the Dollar Revolving L/C Obligations in an aggregate
amount equal to such excess; provided that the Borrower shall not be required to Cash
Collateralize the Dollar Revolving L/C Obligations pursuant to this Section 2.05(b)(iv)
unless, after the prepayment in full of the Dollar Revolving Credit Loans and Swing Line
Loans, the aggregate Dollar Revolving Credit Exposures exceed the aggregate Dollar
Revolving Credit Commitments then in effect. If for any reason the aggregate Alternative
Currency Revolving Credit Exposures at any time exceed the aggregate Alternative Currency
Revolving Credit Commitments then in effect, the Borrower shall promptly prepay or cause to
be promptly prepaid Alternative Currency Revolving Credit Loans and/or Cash Collateralize
the Alternative Currency Revolving L/C Obligations in an aggregate amount equal to such
excess; provided that the Borrower shall not be required to Cash Collateralize the
Alternative Currency Revolving L/C Obligations pursuant to this Section 2.05(b)(iv) unless,
after the prepayment in full of the Alternative Currency Revolving Credit Loans, the
aggregate Alternative Currency Revolving Credit Exposures exceed the aggregate Alternative
Currency Revolving Credit Commitments then in effect.




          (v) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be allocated
among the Classes of Term Loans on a ratable basis and, within each Class of Term Loans,
shall be applied in direct order of maturity to repayments thereof required pursuant to
Section 2.07; and each such prepayment shall be paid to the Lenders in accordance with
their respective Pro Rata Shares subject to clause (vi) of this Section 2.05(b).




          (vi) The Borrower shall notify the Administrative Agent in writing of any mandatory
prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this
Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment.
Each such notice shall specify the date of such prepayment and provide a reasonably
detailed calculation of the amount of such prepayment. The Administrative Agent will
promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice
and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Appropriate Lender
may reject all or a portion of its Pro Rata Share of any mandatory prepayment of Term Loans
required to be made pursuant to clauses (i) through (iii) of this Section 2.05(b) by
providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the
Borrower no later than 5:00 p.m. (New York time) one Business Day after the date of such
Lender’s receipt of notice from the Administrative Agent regarding such prepayment;
provided that any Rejection Notice may be rejected by the Borrower by 5:00 p.m. (New York



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time) on the day of its receipt and shall thereupon become ineffective. Each
Rejection Notice from a given Lender shall specify the principal amount of the mandatory
repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a
Rejection Notice to the Administrative Agent within the time frame specified above or such
Rejection Notice fails to specify the principal amount of the Term Loans to be rejected,
any such failure will be deemed an acceptance of the total amount of such mandatory
repayment of Term Loans. In the event a Lender rejects all or any portion of its Pro Rata
Share of any mandatory prepayment of Term Loans required pursuant to clauses (i) through
(iii) of this Section 2.05(b), the rejected portion of such Lender’s Pro Rata Share of such
prepayment shall be retained by the Borrower.




          (vii) Notwithstanding any of the other provisions of Section 2.05(b), so long as no
Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency
Rate Loans is required to be made under this Section 2.05(b) other than on the last day of
the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount
of any such prepayment otherwise required to be made thereunder into a Cash Collateral
Account until the last day of such Interest Period, at which time the Administrative Agent
shall be authorized (without any further action by or notice to or from the Borrower or any
other Loan Party) to apply such amount to the prepayment of such Loans in accordance with
this Section 2.05(b). Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent shall also be authorized (without any further action by
or notice to or from the Borrower or any other Loan Party) to apply such amount to the
prepayment of the outstanding Loans in accordance with this Section 2.05(b).



          (c) Interest, Funding Losses, Etc. All prepayments under this Section 2.05 shall be
accompanied by all accrued interest thereon, together with, in the case of any such prepayment of a
Eurocurrency Rate Loan (other than a Non-Extended Synthetic L/C Loan to the extent such prepayment
is applied to increase the Credit-Linked Deposits) on a date other than the last day of an Interest
Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section
3.05.



          SECTION 2.06. Termination or Reduction of Commitments and Credit-Linked Deposits.



          (a) Optional. The Borrower may, upon written notice to the Administrative Agent, terminate
the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments
of any Class; provided that (A) no termination or reduction of Extended Synthetic L/C Commitments
shall be made pursuant to this paragraph unless the Tranche S Term Loans are prepaid in a like
amount and (B) until the Non-Extended Synthetic L/C Commitments shall have been terminated or
expired, no termination or reduction of the Extended Synthetic L/C Commitments shall be made
pursuant to this paragraph unless the remaining Non-Extended Synthetic L/C Commitments shall be
reduced at least ratably; provided further that (i) any such notice shall be received by the
Administrative Agent three (3) Business Days prior to the



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date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $500,000 or any whole multiple of $100,000 in excess thereof, (iii) if, after giving
effect to any reduction of the Commitments, the Dollar Revolving Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Dollar Revolving Credit Facility, such sublimit shall
be automatically reduced by the amount of such excess and (iv) the Borrower shall not terminate or
reduce the Synthetic L/C Commitments of any Class if (x) the aggregate amount of the Synthetic L/C
Exposures of such Class would exceed the aggregate amount of the Synthetic L/C Commitments of such
Class or (y) the aggregate amount of the Synthetic L/C Exposures would exceed the aggregate amount
of the Synthetic L/C Commitments. Subject to clause (iii) above, the amount of any such Commitment
reduction shall not be applied to the Dollar Revolving Letter of Credit Sublimit or the Swing Line
Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower
may rescind or postpone any notice of termination of the Commitments if such termination would have
resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or
otherwise shall be delayed.




          (b) Mandatory. The Revolving Credit Commitments shall terminate on the Maturity Date
applicable to the Revolving Credit Facilities. The Synthetic L/C Commitments of any Class shall
terminate on the Maturity Date applicable to the Synthetic L/C Facility of such Class.



          (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will
promptly notify the Lenders of any termination or reduction of unused portions of the Dollar
Revolving Letter of Credit Sublimit, or the Swing Line Sublimit or the unused Commitments of any
Class under this Section 2.06. Upon any reduction of unused Commitments of any Class, the
Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the
amount by which such Commitments are reduced (other than the termination of the Commitment of any
Lender as provided in Section 3.07).



          (d) Credit-Linked Deposits and Tranche S Collateral Account.




          (i) Concurrently with each optional reduction of the Aggregate Non-Extended Synthetic
L/C Commitments pursuant to and in accordance with Section 2.06(a) (other than any such
reduction to zero), the Administrative Agent shall withdraw from the Credit-Linked Deposit
Account and pay to each Non-Extended Synthetic L/C Lender such Lender’s Non-Extended
Synthetic L/C Percentage of its Pro Rata Share (determined on the basis of its Non-Extended
Synthetic L/C Commitment as a percentage of the Aggregate Non-Extended Synthetic L/C
Commitments) of any amount by which the sum of (A) the Credit-Linked Deposits credited to
the account of the Non-Extended Synthetic L/C Lenders plus (B) the aggregate principal
amount of the Non-Extended Synthetic L/C Loans would exceed, after giving effect to such
reduction of the Aggregate Non-Extended Synthetic L/C Commitments, the greater of the
Aggregate Non-Extended Synthetic L/C Commitments and the aggregate amount of the
Non-Extended Synthetic L/C Exposures.




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          (ii) Concurrently with any termination or reduction of the Aggregate
Non-Extended Synthetic L/C Commitments to zero pursuant to and in accordance with this
Section 2.06 or Article VIII, the Administrative Agent shall withdraw from the
Credit-Linked Deposit Account and pay to each Non-Extended Synthetic L/C Lender such
Lender’s Pro Rata Share (determined on the basis of its Non-Extended Synthetic L/C
Commitment as a percentage of the Aggregate Non-Extended Synthetic L/C Commitments) of the
excess at such time of the aggregate amount of the Credit-Linked Deposits credited to the
account of the Non-Extended Synthetic L/C Lenders over the Non-Extended Synthetic L/C
Exposure (excluding any portion thereof attributable to Non-Extended Synthetic L/C Loans).




          (iii) Concurrently with each optional termination or reduction of the Aggregate
Extended Synthetic L/C Commitments pursuant to and in accordance with Section 2.06(a), the
Synthetic L/C Issuer shall release to the Borrower from the Tranche S Collateral Account
funds in an amount equal to the amount of such reduction, but only to the extent that,
after giving effect thereto, the aggregate amount of the Extended Synthetic L/C Exposures
(determined without giving effect to the proviso contained in the definition of “Extended
Synthetic L/C Exposure”) would not exceed the Tranche S Collateral Account Amount.


          SECTION 2.07. Repayment of Loans.


          (a) Tranche B Dollar Term Loans.




          (i) The Borrower shall repay to the Administrative Agent for the ratable account of
the Extended Tranche B Dollar Term Lenders (A) on the last Business Day of each March,
June, September and December, commencing with the last Business Day of December 2010, an
aggregate amount in Dollars equal to 0.25% of the aggregate principal amount of all
Extended Tranche B Dollar Term Loans outstanding on the Third Amendment and Restatement
Effective Date (which payments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on
the Maturity Date for the Extended Tranche B Dollar Term Loans, the aggregate principal
amount of all Extended Tranche B Dollar Term Loans outstanding on such date.




          (ii) The Borrower shall repay to the Administrative Agent for the ratable account of
the Non-Extended Tranche B Dollar Term Lenders (A) on the last Business Day of each March,
June, September and December, an aggregate amount in Dollars equal to (x) the amount that
would have been due on such date in respect of the Existing Tranche B Dollar Term Loans
pursuant to Section 2.07(a) of the Second Amended and Restated Credit Agreement multiplied
by (y) a fraction the numerator of which is the Dollar Amount of the Non-Extended Tranche B
Dollar Term Loans as of the Third Amendment and Restatement Effective Date and the
denominator of which is the Dollar Amount of all the



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Tranche B Dollar Term Loans as of the Third Amendment and Restatement Effective Date
(which payments shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.05) and (B) on the Maturity
Date for the Non-Extended Tranche B Dollar Term Loans, the aggregate principal amount of
all Non-Extended Tranche B Dollar Term Loans outstanding on such date.


          (b) Euro Term Loans.




          (i) The Borrower shall repay to the Administrative Agent for the ratable account of
the Extended Euro Term Lenders (A) on the last Business Day of each March, June, September
and December, commencing with the last Business Day of December 2010, an aggregate amount
in Euros equal to 0.25% of the aggregate principal amount of all Extended Euro Term Loans
outstanding on the Third Amendment and Restatement Effective Date (which payments shall be
reduced as a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05) and (ii) on the Maturity Date for the Extended Euro
Term Loans, the aggregate principal amount of all Extended Euro Term Loans outstanding on
such date.




          (ii) The Borrower shall repay to the Administrative Agent for the ratable account of
the Non-Extended Euro Term Lenders (A) on the last Business Day of each March, June,
September and December, an aggregate amount in Euros equal to (x) the amount that would
have been due on such date in respect of the Existing Euro Term Loans pursuant to Section
2.07(b) of the Second Amended and Restated Credit Agreement multiplied by (y) a fraction
the numerator of which is the aggregate amount of the Non-Extended Euro Term Loans as of
the Third Amendment and Restatement Effective Date and the denominator of which is the
aggregate amount of all the Euro Term Loans as of the Third Amendment and Restatement
Effective Date (which payments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on
the Maturity Date for the Non-Extended Euro Term Loans, the aggregate principal amount of
all Non-Extended Euro Term Loans outstanding on such date.


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


          (d) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date five (5) Business Days after such Loan is made and (ii) the Maturity Date for the
Dollar Revolving Credit Facility.


          (e) Tranche S Term Loans and Non-Extended Synthetic L/C Loans. The Borrower shall repay to
the Administrative Agent (i) on the Maturity Date for the Extended Synthetic L/C Facility, for the
ratable account of the Extended Synthetic L/C





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Lenders, the aggregate principal amount of all Tranche S Term Loans outstanding on such date
and (ii) on the Maturity Date for the Non-Extended Synthetic L/C Facility, for the ratable account
of the Non-Extended Synthetic L/C Lenders, the aggregate principal amount of all Non-Extended
Synthetic L/C Loans outstanding on such date.


          (f) For the avoidance of doubt, all Loans shall be repaid, whether pursuant to this Section
2.07 or otherwise, in the currency in which they were made.


          SECTION 2.08. Interest.


          (a) Subject to the provisions of Section 2.08(b), (i) each Eurocurrency Rate Loan (other than
a Non-Extended Synthetic L/C Loan) shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest
Period plus the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which
is lent from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory
Cost; (ii) each Base Rate Loan (other than a Swing Line Loan or a Non-Extended Synthetic L/C Loan)
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate; (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate for Dollar Revolving Credit
Loans; and (iv) each Non-Extended Synthetic L/C Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period (or portion thereof) (which Interest Period shall
be coincident with the applicable Interest Period for the Credit-Linked Deposits) at a rate per
annum equal to the Eurocurrency Rate for the Credit-Linked Deposits plus the Applicable Rate for
the Non-Extended Tranche B Dollar Term Loans that are Eurocurrency Rate Loans. For the avoidance
of doubt, each Alternative Currency Revolving Credit Loan shall be a Eurocurrency Rate Loan.


          (b) The Borrower shall pay interest on past due amounts hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.


          (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.


          (d) Interest on each Loan shall be payable in the currency in which each Loan was made.





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          SECTION 2.09. Fees. In addition to certain fees described in Sections 2.03(g) and
(h):


          (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of
each (i) Dollar Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee
equal to the Applicable Rate with respect to commitment fees times the actual daily amount by which
the aggregate Dollar Revolving Credit Commitment exceeds the sum of (A) the Outstanding Amount of
Dollar Revolving Credit Loans and (B) the Outstanding Amount of Dollar Revolving L/C Obligations;
provided that any commitment fee accrued with respect to any of the Dollar Revolving Commitments of
a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and
payable by the Borrower prior to such time; provided further that no commitment fee shall accrue on
any of the Dollar Revolving Credit Commitments of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender and (ii) Alternative Currency Revolving Credit Lender in accordance with its
Pro Rata Share, a commitment fee equal to the Applicable Rate with respect to commitment fees times
the actual daily amount by which the aggregate Alternative Currency Revolving Credit Commitment
exceeds the sum of (A) the Outstanding Amount of Alternative Currency Revolving Credit Loans and
(B) the Outstanding Amount of Alternative Currency Revolving L/C Obligations; provided that any
commitment fee accrued with respect to any of the Alternative Currency Revolving Commitments of a
Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and
payable by the Borrower prior to such time; provided further that no commitment fee shall accrue on
any of the Alternative Currency Revolving Credit Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender. The commitment fees shall accrue at all times from the
Original Closing Date until the Maturity Date for the Revolving Credit Facilities, including at any
time during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Original Closing Date, and on the Maturity
Date for the Revolving Credit Facilities. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.


          (b) Facility Fee. The Borrower shall pay to the Administrative Agent for the account of each
Non-Extended Synthetic L/C Lender a facility fee equal to (i) the sum of (A) the Applicable Rate
with respect to Non-Extended Synthetic L/C facility fees and (B) the Credit-Linked Deposit Cost
Amount for the applicable period times (ii) the amount of such Lender’s Credit-Linked Deposit. The
facility fee shall accrue at all times from the First Amendment and Restatement Effective Date
until the Maturity Date for the Non-Extended Synthetic L/C Facility, including at any time during
which one or more of





99









 







the conditions in Article IV is not met, and shall be due and payable on each Interest Payment
Date with respect to Credit-Linked Deposits, and on any date on which any Credit-Linked Deposit is
terminated and the funds therein returned to the Non-Extended Synthetic L/C Lenders.


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


          SECTION 2.10. Computation of Interest and Fees. All computations of interest for
Base Rate Loans when the Base Rate is determined by UBS AG, Stamford Branch’s “prime rate” and for
Alternative Currency Revolving Credit Loans denominated in Sterling shall be made on the basis of a
year of three hundred and sixty-five (365) days and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual
days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall
not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is
paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of
an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.


          SECTION 2.11. Evidence of Indebtedness.


          (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and evidenced by one or more entries in the Register maintained
by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c),
as agent for the Borrower, in each case in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent
manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such
Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.


          (b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and
the Administrative Agent shall maintain in accordance with its usual practice accounts or records
and, in the case of the Administrative Agent, entries in the





100









 







Register, evidencing the purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.


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


          SECTION 2.12. Payments Generally.


          (a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder with respect to principal and interest on Loans denominated
in an Alternative Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in such Alternative Currency and in Same Day Funds not later than 2:00 p.m. (London time) on the
dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any
required payment hereunder in an Alternative Currency, the Borrower shall make such payment in
Dollars in the Dollar Amount of the Alternative Currency payment amount. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
All payments received by the Administrative Agent (i) after 2:00 p.m., in the case of payments in
Dollars, or (ii) after 2:00 p.m. (London time) in the case of payments in an Alternative Currency,
shall in each case be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.


          (b) If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be; provided that, if such extension would
cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next
succeeding calendar month, such payment shall be made on the immediately preceding Business Day.


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





101









 







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




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




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


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


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


          (e) The obligations of the Lenders hereunder to make Loans, to fund the Credit-Linked
Deposits and to fund participations in Letters of Credit and Swing Line





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Loans are several and not joint. The failure of any Lender to make any Loan, to fund a
Credit-Linked Deposit or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Loan, to fund its Credit-Linked
Deposit or purchase its participation.


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


          (g) Whenever any payment received by the Administrative Agent under this Agreement or any of
the other Loan Documents is insufficient to pay in full all amounts due and payable to the
Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative Agent and applied by
the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If
the Administrative Agent receives funds for application to the Obligations of the Loan Parties
under or in respect of the Loan Documents under circumstances for which the Loan Documents do not
specify the manner in which such funds are to be applied, the Administrative Agent may, but shall
not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such
Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such
time and (b) the Outstanding Amount of all L/C Obligations (without duplication of the Tranche S
Term Loans) outstanding at such time, in repayment or prepayment of such of the outstanding Loans
or other Obligations then owing to such Lender.


          SECTION 2.13. Sharing of Payments. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C
Obligations and Swing Line Loans held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them
and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by
them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess
payment in respect of such Loans or such participations, as the case may be, pro rata with each of
them; provided that if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to
any settlement entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase
price paid therefor, together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without further interest
thereon. The Borrower agrees that any Lender so purchasing a





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participation from another Lender may, to the fullest extent permitted by applicable Law,
exercise all its rights of payment (including the right of setoff, but subject to Section 10.09)
with respect to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of participations purchased under
this Section 2.13 and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from
and after such purchase have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the Obligations purchased.


          SECTION 2.14. Incremental Credit Extensions.


          (a) The Borrower may at any time or from time to time after the Second Amendment and
Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative
Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional
tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of
the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”), provided
that (i) 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 and at the time that any
such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default
shall exist and (ii) the Borrower shall be in compliance with the covenant set forth in
Section 7.11 for the Test Period in effect at the applicable Incremental Facility Closing Date
determined on a Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving
Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000
(provided that such amount may be less than $25,000,000 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 and the Revolving Commitment
Increases shall not exceed the sum of $500,000,000. The Incremental Term Loans (a) shall rank pari
passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b)
shall not mature earlier than the Latest Maturity Date in effect at the time such Incremental Term
Loans are incurred and (c) except as set forth above, shall be treated substantially the same as
the Term Loans (other than the Tranche S Term Loans) (in each case, including with respect to
mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to
Incremental Term Loans may be materially different from those of the Term Loans to the extent such
differences are reasonably acceptable to the Arrangers and (ii) the interest rates and amortization
schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the
lenders thereof. Each notice from the Borrower pursuant to this Section shall set forth the
requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment
Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided,
by any existing Lender (and each existing Term Lender will have the right, but not an obligation,
to make a portion of any





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Incremental Term Loan, and each existing Revolving Credit Lender will have the right, but not
an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms
permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative
Agent) or by any other bank or other financial institution (any such other bank or other financial
institution being called an “Additional Lender”), provided that the Administrative Agent shall have
consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such
Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be
required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as
applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans
and Revolving Commitment Increases 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 Loan Documents, executed
by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional
Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of
any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental
Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be
subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of
each of the conditions set forth in Section 4.03 (it being understood that all references to “the
date of such Credit Extension” or similar language in such Section 4.03 shall be deemed to refer to
the effective date of such Incremental Amendment) and such other conditions as the parties thereto
shall agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving
Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be
obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so
agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, 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”) in respect of such increase, and each such
Revolving Commitment Increase Lender will automatically and without further act be deemed to have
assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding
Revolving 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 Revolving 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. 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 fr
om
the proceeds of additional





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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 3.05. 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.


          (b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the
contrary.


          SECTION 2.15. Currency Equivalents.


          (a) The Administrative Agent shall determine the Dollar Amount of each Loan denominated in an
Alternative Currency and each L/C Obligation in respect of Letters of Credit denominated in an
Alternative Currency (i) in the case of any Euro Term Loan, as of the Original Closing Date and
(ii) otherwise, (A) as of the first day of each Interest Period applicable thereto and (B) as of
the end of each fiscal quarter of the Borrower, and shall promptly notify the Borrower and the
Lenders of each Dollar Amount so determined by it. Each such determination shall be based on the
Exchange Rate (x) on the date of the related Borrowing Request for purposes of the initial such
determination for any Loan denominated in an Alternative Currency and (y) on the fourth Business
Day prior to the date as of which such Dollar Amount is to be determined, for purposes of any
subsequent determination.


          (b) If after giving effect to any such determination of a Dollar Amount, the aggregate
Outstanding Amount of the Alternative Currency Revolving Credit Loans and the Alternative Currency
Revolving L/C Obligations exceeds the aggregate Alternative Currency Revolving Credit Commitments
then in effect by 5% or more, the Borrower shall, within five (5) Business Days of receipt of
notice thereof from the Administrative Agent setting forth such calculation in reasonable detail,
prepay or cause to be prepaid outstanding Alternative Currency Revolving Credit Loans or take other
action (including, in the Borrower’s discretion, cash collateralization of Alternative Currency
Revolving L/C Obligations in amounts from time to time equal to such excess) to the extent
necessary to eliminate any such excess.


          SECTION 2.16. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender: (a) if any Swing Line Obligations or Revolving
L/C Obligations exist at the time a Lender becomes a Defaulting Lender then the Borrower shall
within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such
Defaulting Lender’s Pro Rata Share of the Swing Line Obligations and (y) second, Cash Collateralize
such Defaulting Lender’s Pro Rata Share of the Revolving L/C Obligations in accordance with the
procedures set forth in Section 2.03(f) (with references therein to the Outstanding Amount of all
Revolving L/C Obligations, or similar terms, being deemed to refer instead to the Outstanding
Amount of such Defaulting Lender’s Pro Rata Share of all Revolving





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L/C Obligations) for so long as such Revolving L/C Obligations are outstanding; and (b) so
long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any
Swing Line Loan and no Revolving L/C Issuer shall be required to issue, amend or increase any
Revolving Letter of Credit, unless it is satisfied that the related exposure will be 100% covered
(or in the case of Cash Collateralization, 105% covered) as set forth in clause (a) above and as
the Administrative Agent, Swing Line Lender and any Revolving L/C Issuer may otherwise reasonably
require. The rights and remedies against a Defaulting Lender under this Section 2.16 are in
addition to other rights and remedies that the Borrower, the Administrative Agent, each Revolving
L/C Issuer, the Swing Line Lender and the non-Defaulting Lenders may have against such Defaulting
Lender.


          SECTION 2.17. Revolving Credit Loan Modification Offers. (a) The Borrower may, by
written notice to the Administrative Agent from time to time, make one or more offers (each, a
“Revolving Credit Loan Modification Offer”) to all the Revolving Credit Lenders of one or more
Classes (each Class subject to such a Loan Modification Offer, an “Affected Revolving Credit
Class”) to make one or more Permitted Amendments pursuant to procedures reasonably specified by the
Revolving Credit Loan Modification Offer Arranger and reasonably acceptable to the Borrower. 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 10 Business Days nor more than 30 Business Days after the date of such notice, unless
otherwise agreed to by the Administrative Agent). Permitted Amendments shall become effective only
with respect to the Loans and Commitments of the Lenders of the Affected Revolving Credit Class
that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Revolving Credit
Lenders”) and, in the case of any Accepting Revolving Credit Lender, only with respect to such
Lender’s Loans and Commitments of such Affected Revolving Credit Class as to which such Lender’s
acceptance has been made.


          (b) The Borrower and each Accepting Revolving Credit Lender shall execute and deliver to the
Administrative Agent a Revolving Credit Loan Modification Agreement and such other documentation as
the Administrative Agent or the Revolving Credit Loan Modification Offer Arranger 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 Revolving Credit Loan Modification Agreement. Each of the parties hereto hereby agrees that,
upon the effectiveness of any Revolving Credit Loan Modification Agreement, this Agreement shall be
deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms
of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of
the Accepting Revolving Credit Lenders of the Affected Revolving Credit Class, including any
amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Revolving
Credit Lenders as a new “Class” of loans and/or commitments hereunder. Notwithstanding the
foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the
extent to reasonably requested by the Administrative Agent or the Revolving Credit Loan
Modification Offer Arranger, shall





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have received legal opinions, board resolutions, officer’s and secretary’s certificates and
other documentation consistent with those delivered on the Original Closing Date under Section 4.01
of the Original Credit Agreement.


          (c) “Permitted Amendments” means any or all of the following: (i) an extension of the
Maturity Date applicable to the applicable Loans and/or Commitments of the Accepting Revolving
Credit Lenders, (ii) an increase in the Applicable Rate with respect to the applicable Loans and/or
Commitments of the Accepting Revolving Credit Lenders, (iii) the inclusion of additional fees to be
payable to the Accepting Revolving Credit Lenders, (iv) such amendments to this Agreement and the
other Loan Documents as shall be appropriate, in the judgment of the Revolving Credit Loan
Modification Offer Arranger or the Administrative Agent, to provide the rights and benefits of this
Agreement and other Loan Documents to each new “Class” of loans and/or commitments resulting
therefrom, provided that (A) the allocation of the participation exposure with respect to any
then-existing or subsequently issued or made Revolving Letter of Credit or Swing Line Loan as
between the commitments of such new “Class” and the remaining Commitments of the related Affected
Revolving Credit Class shall be made on a ratable basis as between the commitments of such new
“Class” and the remaining Commitments of the related Affected Revolving Credit Class and (B) the
Letter of Credit Expiration Date and the Maturity Date applicable to the Revolving Letters of
Credit issued by any Revolving L/C Issuer or the Swing Line Loans made by the Swing Line Lender may
not be extended without the prior written consent of such Revolving L/C Issuer or the Swing Line
Lender, as applicable, and (v) such other amendments to this Agreement and the other Loan Documents
as shall be appropriate, in the judgment of the Revolving Credit Loan Modification Offer Arranger
or the Administrative Agent, to give effect to the foregoing Permitted Amendments (it being agreed
that the Administrative Agent shall be entitled to receive customary agency fees for acting in such
capacity for any period after the Latest Maturity Date in effect immediately prior to the
effectiveness of any such Permitted Amendment (with the Borrower and the Administrative Agent
agreeing to negotiate in good faith the amount of such fees) and that no such Permitted Amendment
may affect the rights or duties of, or any fees or other amounts payable, to the Administrative
Agent without the prior written consent thereto of the Administrative Agent).



ARTICLE III




Taxes, Increased Costs Protection and Illegality



          SECTION 3.01. Taxes.


          (a) Except as provided in this Section 3.01, any and all payments by the Borrower (the term
Borrower under Article III being deemed to include any Subsidiary for whose account a Letter of
Credit is issued) or any Guarantor to or for the account of any Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and
all liabilities (including additions to tax, penalties and interest) with respect thereto,
excluding, in the





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case of each Agent and each Lender, taxes imposed on or measured by its net income (including
branch profits), and franchise (and similar) taxes imposed on it in lieu of net income taxes, by
the jurisdiction (or any political subdivision thereof) under the Laws of which such Agent or such
Lender, as the case may be, is organized or maintains a Lending Office, and all liabilities
(including additions to tax, penalties and interest) with respect thereto (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by any
Laws to deduct any Taxes or Other Taxes from or in respect of any sum payable under any Loan
Document to any Agent or any Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of
such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as
possible thereafter), the Borrower shall furnish to such Agent or Lender (as the case may be) the
original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt
is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to
the Administrative Agent. If the Borrower fails to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to any Agent or any Lender the required receipts or
other required documentary evidence, the Borrower shall indemnify such Agent and such Lender for
any incremental taxes, interest or penalties that may become payable by such Agent or such Lender
arising out of such failure.


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


          (c) The Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction
on amounts payable and paid under this Section 3.01) payable by such Agent and such Lender and (ii)
any liability (including additions to tax, penalties, interest and expenses) arising therefrom or
with respect thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided that such Agent or
Lender, as the case may be, provides the Borrower with a written statement thereof setting forth in
reasonable detail the basis and calculation of such amounts. Payment under this Section 3.01(c)
shall be made within ten (10) days after the date such Lender or such Agent makes a demand
therefor.


          (d) Each Lender shall severally indemnify each Agent for any taxes (including any taxes that
are excluded from the definition of “Taxes” pursuant to this





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Section 3.01, but, in the case of any Taxes, only to the extent that the Borrower has not
already indemnified such Agent for such Taxes and without limiting the obligation of the Borrower
to do so) attributable to such Lender that are paid or payable by such Agent in connection with
this Agreement and any liability (including additions to tax, penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided that such Agent provides the
Lender with a written statement thereof setting forth in reasonable detail the basis and
calculation of such amounts. Payment under this Section 3.01(d) shall be made within ten (10) days
after the date such Agent makes a demand therefor.


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


          (f) Notwithstanding anything else herein to the contrary, if a Foreign Lender or an Agent is
subject to U.S. federal withholding tax at a rate in excess of zero percent at the time such Lender
or such Agent, as the case may be, first becomes a party to this Agreement, U.S. federal
withholding tax imposed by such jurisdiction at such rate shall be considered excluded from Taxes
unless and until such Lender or Agent, as the case may be, provides the appropriate forms
certifying that a lesser rate applies, whereupon U.S. federal withholding tax at such lesser rate
only shall be considered excluded from Taxes for periods governed by such forms; provided that, if
at the date of the Assignment and Assumption pursuant to which a Foreign Lender becomes a party to
this Agreement, the Lender assignor was entitled to payments under clause (a) of this Section 3.01
in respect of U.S. federal withholding tax with respect to interest paid at such date, then, to
such extent, the term Taxes shall include (in addition to U.S. federal withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) U.S. federal withholding
tax, if any, applicable with respect to the Lender assignee on such date. A Lender that is
entitled to an exemption from or reduction of Bermuda withholding tax shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by applicable law and as
reasonably requested by the Borrower, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding or at a reduced rate;
provided that such Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender’s reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender or be otherwise materially disadvantageous
to such Lender; provided further that the Borrower, shall reimburse such Lender for any material
out-of-





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pocket costs that are incurred by the Lender with respect to providing any such documentation.


          (g) If any Lender or Agent determines, in its sole discretion, that it has received a refund
in respect of any Taxes or Other Taxes as to which indemnification or additional amounts have been
paid to it by the Borrower pursuant to this Section 3.01, it shall promptly remit such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund plus any
interest included in such refund by the relevant taxing authority attributable thereto) to the
Borrower, net of all out-of-pocket expenses of the Lender or Agent, as the case may be and without
interest (other than any interest paid by the relevant taxing authority with respect to such
refund); provided that the Borrower, upon the request of the Lender or Agent, as the case may be,
agrees promptly to return such refund to such party in the event such party is required to repay
such refund to the relevant taxing authority. Such Lender or Agent, as the case may be, shall, at
the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other
evidence of the requirement to repay such refund received from the relevant taxing authority
(provided that such Lender or Agent may delete any information therein that such Lender or Agent
deems confidential). Nothing herein contained shall interfere with the right of a Lender or Agent
to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim
any tax refund or to make available its tax returns or disclose any information relating to its tax
affairs or any computations in respect thereof or require any Lender or Agent to do anything that
would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or
repayments to which it may be entitled.


          (h) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 3.01(a) or (c) with respect to such Lender it will, if requested by the Borrower, use
commercially reasonable efforts (subject to such Lender’s overall internal policies of general
application and legal and regulatory restrictions) to designate another Lending Office for any Loan
or Letter of Credit affected by such event; provided that such efforts are made on terms that, in
the sole judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no
economic, legal or regulatory disadvantage; provided further that nothing in this Section 3.01(h)
shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender
pursuant to Section 3.01(a) or (c).


          SECTION 3.02. Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or
charge interest rates based upon the Eurocurrency Rate, then, on notice thereof by such Lender to
the Borrower through the Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended
until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if





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applicable, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or promptly, if such Lender may not lawfully continue to
maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower shall
also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in
connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.


          SECTION 3.03. Inability to Determine Rates. If the Required Lenders determine that
for any reason adequate and reasonable means do not exist for determining the Eurocurrency Rate for
any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or Credit-Linked
Deposit, or that the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan or Credit-Linked Deposit does not adequately and fairly reflect the cost to
such Lenders of funding such Loan or Credit-Linked Deposits, or that Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable amount and the
Interest Period of such Eurocurrency Rate Loan or Credit-Linked Deposit, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans or Credit-Linked Deposits shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and
the Credit-Linked Deposits shall be invested so as to earn a return equal to the greater of the
applicable Overnight Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


          SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans.


          (a) If any Lender determines that as a result of the introduction of or any change in or in
the interpretation of any Law, in each case after the Original Closing Date, or such Lender’s
compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Loans, maintaining any Credit-Linked Deposit or
issuing or participating in Letters of Credit, or a reduction in the amount received or receivable
by such Lender in connection with any of the foregoing (excluding for purposes of this Section
3.04(a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes
indemnifiable pursuant to Section 3.01, (ii) changes in the basis of taxation of overall net income
(including branch profits), and franchise (and similar) taxes imposed in lieu of net income taxes,
by any jurisdiction or any political subdivision of either thereof under the Laws of which such
Lender is organized or maintains a Lending Office, (iii) reserve requirements contemplated by
Section 3.04(c) or (iv) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in





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the Mandatory Cost, other than as set forth below) or the Mandatory Cost, as calculated
hereunder, does not represent the cost to such Lender of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European Central Bank in relation to
its making, funding or maintaining of Eurocurrency Rate Loans, then from time to time within
fifteen (15) days after demand by such Lender setting forth in reasonable detail such increased
costs (with a copy of such demand to the Administrative Agent given in accordance with Section
3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction or, if applicable, the portion of such cost that is not
represented by the Mandatory Cost.


          (b) If any Lender determines that the introduction of any Law regarding capital adequacy or
any change therein or in the interpretation thereof, in each case after the Original Closing Date,
or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate
of return on the capital of such Lender or any corporation controlling such Lender as a consequence
of such Lender’s obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender’s desired return on capital), then from time to time upon demand
of such Lender setting forth in reasonable detail the charge and the calculation of such reduced
rate of return (with a copy of such demand to the Administrative Agent given in accordance with
Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction within fifteen (15) days after receipt of such demand.


          (c) The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits, additional interest on the unpaid principal amount of each Eurocurrency Rate
Loan or Credit-Linked Deposit equal to the actual costs of such reserves allocated to such Loan or
Credit-Linked Deposit by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive in the absence of manifest error), and (ii) as long as such
Lender shall be required to comply with any reserve ratio requirement or analogous requirement of
any other central banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurocurrency Rate Loans or Credit-Linked Deposit, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan or
Credit-Linked Deposit by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error) which in each case shall be due and
payable on each date on which interest is payable on such Loan or Credit-Linked Deposit, provided
that the Borrower shall have received at least fifteen (15) days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to
give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest
or cost shall be due and payable fifteen (15) days from receipt of such notice.


          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section 3.04 shall not constitute a waiver of such Lender’s right to





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demand such compensation; provided that the Borrower shall not be required to compensate a
Lender pursuant to Section 3.04(a), (b) or (c) for any such increased cost or reduction incurred
more than one hundred and eighty (180) days prior to the date that such Lender demands, or notifies
the Borrower of its intention to demand, compensation therefor; provided further that, if the
circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day
period referred to above shall be extended to include the period of retroactive effect thereof.


          (e) If any Lender requests compensation under this Section 3.04, then such Lender will, if
requested by the Borrower, use commercially reasonable efforts to designate another Lending Office
for any Loan, Credit-Linked Deposit Account or Letter of Credit affected by such event; provided
that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such
Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage;
provided further that nothing in this Section 3.04(e) shall affect or postpone any of the
Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or
(d).


          SECTION 3.05. Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:


          (a) (i) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan; or


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


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


          For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded. In addition, the Borrower shall indemnify the
Administrative Agent against any loss or expense comparable to the losses or expenses covered by
the preceding sentences of this Section 3.05 that the Administrative Agent may sustain or incur as
a consequence of any withdrawal from the Credit-Linked Deposit Account pursuant to the terms of
this Agreement prior to the end of the then-applicable Interest Period for the Credit-Linked
Deposits.







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          SECTION 3.06. Matters Applicable to All Requests for Compensation.


          (a) Any Agent or any Lender claiming compensation under this Article III shall deliver a
certificate to the Borrower setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In determining such amount,
such Agent or such Lender may use any reasonable averaging and attribution methods.


          (b) With respect to any Lender’s claim for compensation under Section 3.01, 3.02, 3.03 or
3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more
than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of
the event that gives rise to such claim; provided that, if the circumstance giving rise to such
claim is retroactive, then such 180-day period referred to above shall be extended to include the
period of retroactive effect thereof. If any Lender requests compensation by the Borrower under
Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent),
suspend the obligation of such Lender to make or continue from one Interest Period to another
Eurocurrency Rate Loans, or to convert Base Rate Loans into Eurocurrency Rate Loans, until the
event or condition giving rise to such request ceases to be in effect (in which case the provisions
of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.


          (c) If the obligation of any Lender to make or continue from one Interest Period to another
any Eurocurrency Rate Loan, or to convert Base Rate Loans into Eurocurrency Rate Loans shall be
suspended pursuant to Section 3.06(b) hereof, such Lender’s Eurocurrency Rate Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for such Eurocurrency Rate Loans (or, in the case of an immediate conversion required by
Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04
hereof that gave rise to such conversion no longer exist:




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




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


          (d) If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that
the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to the
conversion of such Lender’s Eurocurrency Rate Loans pursuant to this Section 3.06 no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurocurrency Rate Loans made




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by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurocurrency Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata (as to
principal amounts, interest rate basis and Interest Periods) in accordance with their respective
Commitments.




          SECTION 3.07. Replacement of Lenders under Certain Circumstances.



          (a) If at any time (i) the Borrower becomes obligated to pay additional amounts or indemnity
payments described in Section 3.01 or 3.04 as a result of any condition described in such Sections
or any Lender ceases to make Eurocurrency Rate Loans as a result of any condition described in
Section 3.02 or Section 3.04, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender
becomes a Non-Consenting Lender, then the Borrower may, on ten (10) Business Days’ prior written
notice to the Administrative Agent and such Lender, replace such Lender by causing such Lender to
(and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment
fee to be paid by the Borrower in such instance) all of its rights and obligations under this
Agreement to one or more Eligible Assignees; provided that neither the Administrative Agent nor any
Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person;
and provided further that (A) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments and (B) in the case of any
such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible
Assignees shall have agreed to the applicable departure, waiver or amendment of the Loan Documents.



          (b) Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver
an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans,
Credit-Linked Deposits and participations in L/C Obligations and Swing Line Loans, and (ii) deliver
any Notes evidencing such Loans to the Borrower or Administrative Agent. Pursuant to such
Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may
be, of the assigning Lender’s Commitments and outstanding Loans and participations in L/C
Obligations and Swing Line Loans, (B) all obligations of the Borrower owing to the assigning Lender
relating to the Loans and participations so assigned shall be paid in full by the assignee Lender
to such assigning Lender concurrently with such assignment and assumption and (C) upon such payment
and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate
Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the
assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans,
Commitments and participations, except with respect to indemnification provisions under this
Agreement, which shall survive as to such assigning Lender.



          (c) Notwithstanding anything to the contrary contained above, (i) any Lender that acts as an
L/C Issuer may not be replaced hereunder at any time that it has



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any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such
L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance,
and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of cash
collateral into a cash collateral account in amounts and pursuant to arrangements reasonably
satisfactory to such L/C Issuer) have been made with respect to each such outstanding Letter of
Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced hereunder
except in accordance with the terms of Section 9.09.




          (d) In the event that (i) the Borrower or the Administrative Agent has requested that the
Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any
amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all
affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a
certain Class of the Loans and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed
a “Non-Consenting Lender.”



          SECTION 3.08. Survival. All of the Borrower’s obligations under this Article 3 shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV




Conditions Precedent to Effectiveness and Credit Extensions



          SECTION 4.01. [Reserved.]



          SECTION 4.02. Third Amendment and Restatement Effective Date. The effectiveness of
the amendment and restatement of this Agreement pursuant to the Third Amendment and Restatement
Agreement is subject to the satisfaction of the conditions set forth in the Third Amendment and
Restatement Agreement.



          SECTION 4.03. Conditions to All Credit Extensions. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to
the following conditions precedent:



          (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document shall be true and correct in all material respects on and as
of the date of such Credit Extension; provided that, to the extent that such representations and
warranties specifically refer to an earlier date, they shall be true and correct in all material
respects as of such earlier date; provided, further that, any representation and warranty that is
qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and
correct in all respects on such respective dates.



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



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



          Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by
the Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.03(a) and (b) have been satisfied on and as of the date of the applicable Credit
Extension.



ARTICLE V




Representations and Warranties



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



          SECTION 5.01. Existence, Qualification and Power; Compliance with Laws. Each Loan
Party and each of its Subsidiaries (a) is a Person duly organized or formed, validly existing and
in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority to (i) own or lease its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c)
is duly qualified and in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such qualification, (d) is
in compliance with all Laws, orders, writs, injunctions and orders and (e) has all requisite
governmental licenses, authorizations, consents and approvals to operate its business as currently
conducted; except in each case referred to in clause (c), (d) or (e), to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.



          SECTION 5.02. Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is a party, and the
consummation of the Transaction, are within such Loan Party’s corporate or other powers, have been
duly authorized by all necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under (other than as
permitted by Section 7.01), or require any payment to be made under (i) any Contractual Obligation
to which such Person is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (ii) any material order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c) violate any
material Law; except with respect to any conflict, breach or contravention or payment (but not
creation of Liens) referred to in clause (b)(i), to the extent that such conflict, breach,
contravention or payment could not reasonably be expected to have a Material Adverse Effect.



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



          SECTION 5.04. Binding Effect. This Agreement and each other Loan Document has been
duly executed and delivered by each Loan Party that is party thereto. This Agreement and each
other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with its terms, except as
such enforceability may be limited by Debtor Relief Laws and by general principles of equity.



          SECTION 5.05. Financial Statements; No Material Adverse Effect.



          (a) (i) The Audited Financial Statements and the Unaudited Financial Statements fairly
present in all material respects the financial condition of Holdings and its Subsidiaries or
Worldspan and its Subsidiaries, as the case may be, as of the dates thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently applied throughout
the periods covered thereby, except as otherwise expressly noted therein. During the period from
December 31, 2005 to and including the Worldspan Closing Date, there has been (i) no sale, transfer
or other disposition by Worldspan or any of its Subsidiaries of any material part of the business
or property of Worldspan or any of its Subsidiaries, taken as a whole, and (ii) no purchase or
other acquisition by Worldspan or any of its Subsidiaries of any business or property (including
any Equity Interests of any other Person) material in relation to the consolidated financial
condition of Worldspan and its Subsidiaries, taken as a whole, in each case, which is not reflected
in the foregoing financial statements or in the notes thereto or has not otherwise been disclosed
in writing to the Administrative Agent prior to the Worldspan Closing Date.




          (ii) The unaudited pro forma consolidated balance sheet of Holdings and its
Subsidiaries as at March 31, 2006 (including the notes thereto) (the “Original Closing Date
Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of operations
of Holdings and its Subsidiaries for the most recent fiscal year then ended, the quarter
ended March 31, 2006 and the



119









 






12-month period ending on March 31, 2006 (together with the Original Closing Date Pro
Forma Balance Sheet, the “Original Closing Date Pro Forma Financial Statements”), copies of
which have heretofore been furnished to the Administrative Agent, have been prepared giving
effect (as if such events had occurred on such date or at the beginning of such periods, as
the case may be) to the Original Closing Date Transactions, each material acquisition by
Holdings or any of its Subsidiaries consummated after March 31, 2006 and prior to the
Original Closing Date and all other material transactions that would be required to be
given pro forma effect by Regulation S-X promulgated under the Exchange Act (including
other adjustments consistent with the definition of Pro Forma Adjustment or as otherwise
agreed between the Borrower and the Arrangers). The Original Closing Date Pro Forma
Financial Statements have been prepared in good faith, based on assumptions believed by the
Borrower to be reasonable as of the date of delivery thereof, and present fairly in all
material respects on a pro forma basis and in accordance with GAAP the estimated financial
position of Holdings and its Subsidiaries as at March 31, 2006 and their estimated results
of operations for the periods covered thereby, assuming that the events specified in the
preceding sentence had actually occurred at such date or at the beginning of the periods
covered thereby.




          (iii) The unaudited pro forma consolidated balance sheet of Holdings and its
Subsidiaries as of the last day of the most recently completed fiscal quarter ended at
least 45 days prior to the Worldspan Closing Date (including the notes thereto) (the
“Worldspan Closing Date Pro Forma Balance Sheet”) and the unaudited pro forma consolidated
statement of operations of Holdings and its Subsidiaries for the most recent fiscal year
then ended, the most recently completed fiscal quarter ended at least 45 days prior to the
Worldspan Closing Date and the 12-month period ending on the last day of the most recently
completed fiscal quarter ended at least 45 days prior to the Worldspan Closing Date
(together with the Worldspan Closing Date Pro Forma Balance Sheet, the “Worldspan Closing
Date Pro Forma Financial Statements”), copies of which have heretofore been furnished to
the Administrative Agent, have been prepared giving effect (as if such events had occurred
on such date or at the beginning of such periods, as the case may be) to the Worldspan
Transactions, each material acquisition by Holdings or any of its Subsidiaries consummated
after the last day of the most recently completed fiscal quarter ended at least 45 days
prior to the Worldspan Closing Date and prior to the Worldspan Closing Date and all other
material transactions that would be required to be given pro forma effect by Regulation S-X
promulgated under the Exchange Act (including other adjustments consistent with the
definition of Pro Forma Adjustment or as otherwise agreed between the Borrower and the
Arrangers). The Worldspan Closing Date Pro Forma Financial Statements have been prepared
in good faith, based on assumptions believed by the Borrower to be reasonable as of the
date of delivery thereof, and present fairly in all material respects on a pro forma basis
and in accordance with GAAP the estimated financial position of Holdings and its
Subsidiaries as at the last day of the most recently completed fiscal quarter ended at
least 45 days prior to the Worldspan Closing Date and their estimated results of



120









 






operations for the periods covered thereby, assuming that the events specified in the
preceding sentence had actually occurred at such date or at the beginning of the periods
covered thereby.



          (b) Since the Original Closing Date, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.



          (c) As of the Original Closing Date, neither Holdings nor any Subsidiary has any Indebtedness
or other obligations or liabilities, direct or contingent (other than (i) the liabilities reflected
on Schedule 5.05, (ii) obligations arising under or permitted by this Agreement and (iii)
liabilities incurred in the ordinary course of business) that, either individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse Effect.



          SECTION 5.06. Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower, threatened in writing or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any
of its Subsidiaries or against any of their properties or revenues that either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.



          SECTION 5.07. No Default. Neither Holdings nor any of its Subsidiary is in default
under or with respect to, or a party to, any Contractual Obligation that could, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



          SECTION 5.08. Ownership of Property; Liens. Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, or easements or other limited property interests in, all real property necessary in the
ordinary conduct of its business, free and clear of all Liens except for minor defects in title
that do not materially interfere with its ability to conduct its business or to utilize such assets
for their intended purposes and Liens permitted by Section 7.01 and except where the failure to
have such title could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.



          SECTION 5.09. Environmental Compliance.



          (a) There are no claims, actions, suits, or proceedings alleging potential liability or
responsibility for violation of, or otherwise relating to, any Environmental Law that could,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



          (b) Except as specifically disclosed in Schedule 5.09(b) or except as could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i)
none of the properties currently or formerly owned, leased or operated by any Loan Party or any of
its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property;



121









 




(ii) there are no and never have been any underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being
or have been treated, stored or disposed on any property currently owned, leased or operated by any
Loan Party or any of its Subsidiaries or, to its knowledge, on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; (iii) there is no asbestos or
asbestos-containing material on any property currently owned or operated by any Loan Party or any
of its Subsidiaries; and (iv) Hazardous Materials have not been released, discharged or disposed of
by any Person on any property currently or formerly owned, leased or operated by any Loan Party or
any of its Subsidiaries and Hazardous Materials have not otherwise been released, discharged or
disposed of by any of the Loan Parties and their Subsidiaries at any other location.




          (c) The properties owned, leased or operated by Holdings and the Subsidiaries do not contain
any Hazardous Materials in amounts or concentrations which (i) constitute, or constituted a
violation of, (ii) require remedial action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, remedial actions and liabilities, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.



          (d) Except as specifically disclosed in Schedule 5.09(d), neither Holdings nor any of
its Subsidiaries is undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law except for such investigation or assessment
or remedial or response action that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



          (e) All Hazardous Materials generated, used, treated, handled or stored at, or transported to
or from, any property currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to result, individually or
in the aggregate, in a Material Adverse Effect.



          (f) Except as would not reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect, none of the Loan Parties and their Subsidiaries has contractually
assumed any liability or obligation under or relating to any Environmental Law.



          SECTION 5.10. Taxes. Except as set forth in Schedule 5.10 or except as could
not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, Holdings and its Subsidiaries have timely filed all Federal and state and other tax
returns and reports required to be filed, and have timely paid all Federal and state and other
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings



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diligently conducted and for which adequate reserves have been provided in accordance with
GAAP.




          SECTION 5.11. ERISA Compliance.



          (a) Except as set forth in Schedule 5.11(a) or as could not, either individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in
compliance in with the applicable provisions of ERISA, the Code and other Federal or state Laws.



          (b) (i) No ERISA Event has occurred during the five-year period prior to the date on which
this representation is made or deemed made with respect to any Pension Plan; (ii) no Pension Plan
has an “accumulated funding deficiency” (as defined in Section 412 of the Code), whether or not
waived; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither any Loan Party nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither any Loan Party
nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.11(b), as
could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Effect.



          (c) Except where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, each Foreign Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules, regulations and orders, and
neither a Loan Party nor any Subsidiary has incurred any material obligation in connection with the
termination of or withdrawal from any Foreign Plan. Except as would not reasonably be expected to
result in a Material Adverse Effect, the present value of the accrued benefit liabilities (whether
or not vested) under each Foreign Plan which is funded, determined as of the end of the most
recently ended fiscal year of a Loan Party or Subsidiary (based on the actuarial assumptions used
for purposes of the applicable jurisdiction’s financial reporting requirements), did not exceed the
current value of the assets of such Foreign Plan, and for each Foreign Plan which is not funded,
the obligations of such Foreign Plan are properly accrued.



          SECTION 5.12. Subsidiaries; Equity Interests. As of the Original Closing Date,
neither Holdings nor any Loan Party has any Subsidiaries other than those specifically disclosed in
Schedule 5.12, and all of the outstanding Equity Interests in material Subsidiaries have
been validly issued, are fully paid and nonassessable and all Equity Interests owned by Holdings or
a Loan Party are owned free and clear of all Liens except (i) those created under the Collateral
Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01. As of the Original
Closing Date, Schedule 5.12 (a) sets forth the name and jurisdiction of each Subsidiary,
(b) sets forth the ownership interest of Holdings, the Borrower and any other Subsidiary in each
Subsidiary, including



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the percentage of such ownership and (c) identifies each Subsidiary that is a Subsidiary the
Equity Interests of which are required to be pledged on the Original Closing Date pursuant to the
Collateral and Guarantee Requirement.




          SECTION 5.13. Margin Regulations; Investment Company Act.



          (a) No Loan Party is engaged nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Borrowings or drawings under any Letter of Credit will be used
for any purpose that violates Regulation U.



          (b) None of Holdings, any Person Controlling the Borrower or any Subsidiary is or is required
to be registered as an “investment company” under the Investment Company Act of 1940.



          SECTION 5.14. Disclosure. No report, financial statement, certificate or other
written information furnished by or on behalf of any Loan Party to any Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement
(including any amendment hereto) or delivered hereunder or any other Loan Document (as modified or
supplemented by other information so furnished) when taken as a whole contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information and pro forma financial information, the
Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time of preparation; it being understood that such projections may
vary from actual results and that such variances may be material.



          SECTION 5.15. Intellectual Property; Licenses, Etc. Each of the Loan Parties and
their Subsidiaries own, license or possess the right to use, all of the trademarks, service marks,
trade names, domain names, copyrights, patents, patent rights, licenses, technology, software,
know-how database rights, design rights and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses as
currently conducted, and, without conflict with the rights of any Person, except to the extent such
conflicts, either individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. No such IP Rights infringe upon any rights held by any Person except for
such infringements, individually or in the aggregate, which could not reasonably be expected to
have a Material Adverse Effect. No claim or litigation regarding any such IP Rights, is pending
or, to the knowledge of the Borrower, threatened against any Loan Party or Subsidiary, which,
either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



          SECTION 5.16. Solvency. On the Worldspan Closing Date after giving effect to the
Worldspan Transactions, the Loan Parties, on a consolidated basis, are Solvent.




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          SECTION 5.17. Subordination of Junior Financing. The Obligations are “Senior
Debt,” “Senior Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any Junior Financing Documentation.




          SECTION 5.18. Labor Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes
against Holdings or any of its Subsidiaries pending or, to the knowledge of Holdings or the
Borrower, threatened; (b) none of hours worked by nor any payments made to employees of Holdings or
any of its Subsidiaries have been in violation of the Fair Labor Standards Act or any other
applicable Laws dealing with such matters; and (c) all payments due from Holdings or any of its
Subsidiaries on account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the relevant party.




ARTICLE VI




Affirmative Covenants



          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, each of Holdings and the Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each Restricted Subsidiary to:




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




          (a) as soon as available, but in any event within ninety (90) days after the end of each
fiscal year of Holdings, a consolidated balance sheet of Holdings and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of income or operations,
stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP, audited and accompanied by a report and opinion of Deloitte & Touche LLP or any other
independent registered public accounting firm of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any qualification or exception
as to the scope of such audit;




          (b) as soon as available, but in any event within forty-five (45) days after the end of each
of the first three (3) fiscal quarters of each fiscal year of Holdings, a consolidated balance
sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter, and the related (i)
consolidated statements of income or operations for such fiscal quarter and for the portion of the
fiscal year then ended and (ii) consolidated statements of cash flows for the portion of the fiscal
year then ended, setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal






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year and the corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting in all material respects
the financial condition, results of operations, stockholders’ equity and cash flows of Holdings and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; and




          (c) simultaneously with the delivery of each set of consolidated financial statements
referred to in Sections 6.01(a) and 6.01(b) above, the related consolidating financial statements
reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if
any) from such consolidated financial statements.



Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 may
be satisfied with respect to financial information of Holdings and its Subsidiaries by furnishing
(A) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings
that holds all of the Equity Interests of Holdings) or (B) Holdings’ (or any direct or indirect
parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided
that, with respect to each of clauses (A) and (B), to the extent such information is in lieu of
information required to be provided under Section 6.01(a), such materials are accompanied by a
report and opinion of Deloitte & Touche LLP or any other independent registered public accounting
firm of nationally recognized standing, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit.




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




          (a) no later than five (5) days after the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent registered public accounting firm certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default resulting from a violation of Section 7.11 or, if any such Event
of Default shall exist, stating the nature and status of such event;




          (b) no later than five (5) days after the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer
of the Borrower and, if such Compliance Certificate demonstrates an Event of Default resulting from
a violation of Section 7.11, any of the Equity Investors may deliver, together with such Compliance
Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default
pursuant to Section 8.05; provided that the delivery of a Notice of Intent to Cure shall in no way
affect or alter the occurrence, existence or continuation of any such Event of Default or the
rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan
Document;







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          (c) promptly after the same are publicly available, copies of all annual, regular, periodic
and special reports and registration statements which Holdings or the Borrower files with the SEC
or with any Governmental Authority that may be substituted therefor (other than amendments to any
registration statement (to the extent such registration statement, in the form it became effective,
is delivered), exhibits to any registration statement and, if applicable, any registration
statement on Form S-8) and in any case not otherwise required to be delivered to the Administrative
Agent pursuant hereto;




          (d) promptly after the furnishing thereof, copies of any material requests or material
notices received by any Loan Party (other than in the ordinary course of business) or material
statements or material reports furnished to any holder of debt securities of any Loan Party or of
any of its Subsidiaries pursuant to the terms of any High Yield Notes Documentation, Junior
Financing Documentation or Permitted Refinancing Indebtedness Documentation in a principal amount
greater than the Threshold Amount and not otherwise required to be furnished to the Lenders
pursuant to any other clause of this Section 6.02;




          (e) together with the delivery of the financial statements pursuant to Section 6.01(a) and
each Compliance Certificate pursuant to Section 6.02(b), (i) a report setting forth the information
required by Section 3.03(c) of the Security Agreement or confirming that there has been no change
in such information since the Original Closing Date or the date of the last such report), (ii) a
description of each event, condition or circumstance during the last fiscal quarter covered by such
Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a list of
each Subsidiary that identifies each Subsidiary as a Restricted or an Unrestricted Subsidiary as of
the date of delivery of such Compliance Certificate; and




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




          Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to
the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which Holdings or the Borrower posts such documents, or provides a link thereto on Holdings’
or the Borrower’s website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such documents are posted on Holdings’ or the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) upon written request by the Administrative Agent,
the Borrower shall deliver paper copies of such documents to the Administrative Agent for further
distribution to each Lender until a written request to cease delivering paper copies is given by
the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent of the posting of any such






127









 







documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. Each Lender shall be solely responsible
for timely accessing posted documents or requesting delivery of paper copies of such documents from
the Administrative Agent and maintaining its copies of such documents.




          SECTION 6.03. Notices. Promptly after obtaining knowledge thereof, notify the
Administrative Agent:




          (a) of the occurrence of any Default; and




          (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including arising out of or resulting from (i) breach or non-performance of, or any
default or event of default under, a Contractual Obligation of any Loan Party or any Subsidiary,
(ii) any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any
Subsidiary and any Governmental Authority, (iii) the commencement of, or any material development
in, any litigation or proceeding affecting any Loan Party or any Subsidiary, including pursuant to
any applicable Environmental Laws or in respect of IP Rights or the assertion or occurrence of any
noncompliance by any Loan Party or as any of its Subsidiaries with, or liability under, any
Environmental Law or Environmental Permit, or (iv) the occurrence of any ERISA Event.




          Each notice pursuant to this Section shall be accompanied by a written statement of a
Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to Section
6.03(a) or (b) (as applicable) and (y) setting forth details of the occurrence referred to therein
and stating what action the Borrower has taken and proposes to take with respect thereto.




          SECTION 6.04. Payment of Obligations. Pay, discharge or otherwise satisfy as the
same shall become due and payable, all its obligations and liabilities in respect of taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or in
respect of its property, except, in each case, to the extent the failure to pay or discharge the
same could not reasonably be expected to have a Material Adverse Effect.




          SECTION 6.05. Preservation of Existence, Etc. (a) Preserve, renew and maintain in
full force and effect its legal existence under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05 and (b) take all reasonable action to
maintain all rights, privileges (including its good standing), permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except (i) to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect or (ii) pursuant to a
transaction permitted by Section 7.04 or 7.05.







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




          SECTION 6.07. Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any self-insurance reasonable
and customary for similarly situated Persons engaged in the same or similar businesses as Holdings,
Borrower and the Restricted Subsidiaries) as are customarily carried under similar circumstances by
such other Persons.




          SECTION 6.08. Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except if the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.




          SECTION 6.09. Books and Records. Maintain proper books of record and account, in
which entries that are full, true and correct in all material respects and are in conformity with
GAAP consistently applied shall be made of all material financial transactions and matters
involving the assets and business of Holdings or such Subsidiary, as the case may be.




          SECTION 6.10. Inspection Rights. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and
to discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the reasonable expense of the Borrower and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided that, excluding any such visits and inspections during the continuation of
an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of
the Administrative Agent and the Lenders under this Section 6.10 and the Administrative Agent shall
not exercise such rights more often than two (2) times during any calendar year absent the
existence of an Event of Default and only one (1) such time shall be at the Borrower’s expense;
provided further that when an Event of Default exists, the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to
participate in any discussions with Holdings’ independent public accountants.







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          SECTION 6.11. Covenant to Guarantee Obligations and Give Security. At the Borrower’s
expense, take all action necessary or reasonably requested by the Administrative Agent to ensure
that the Collateral and Guarantee Requirement continues to be satisfied, including:




          (a) upon the formation or acquisition of any new direct or indirect wholly owned Domestic
Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any
Loan Party or the designation in accordance with Section 6.14 of any existing direct or indirect
wholly owned Domestic Subsidiary as a Restricted Subsidiary:





          (i) within thirty (30) days after such formation, acquisition or designation or such
longer period as the Administrative Agent may agree in its discretion:




          (A) cause each such Restricted Subsidiary that is required to become a
Guarantor under the Collateral and Guarantee Requirement to furnish to the
Administrative Agent a description of the real properties owned by such Restricted
Subsidiary that have a book value in excess of $7,250,000 in detail reasonably
satisfactory to the Administrative Agent;




          (B) cause (x) each such Restricted Subsidiary that is required to become a
Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and
deliver to the Administrative Agent or the Collateral Agent (as appropriate)
Mortgages, Security Agreement Supplements, Intellectual Property Security
Agreements and other security agreements and documents (including, with respect to
Mortgages, the documents listed in Section 6.13(b)), as reasonably requested by and
in form and substance reasonably satisfactory to the Administrative Agent
(consistent with the Mortgages, Security Agreement, Intellectual Property Security
Agreements and other Collateral Documents in effect on the Original Closing Date),
in each case granting Liens required by the Collateral and Guarantee Requirement
and (y) each direct or indirect parent of each such Restricted Subsidiary that is
required to be a Guarantor pursuant to the Collateral and Guarantee Requirement to
duly execute and deliver to the Administrative Agent such Security Agreement
Supplements and other security agreements as reasonably requested by and in form
and substance reasonably satisfactory to the Administrative Agent (consistent with
the Security Agreements in effect on the Original Closing Date), in each case
granting Liens required by the Collateral and Guarantee Requirement;




          (C) (x) cause each such Restricted Subsidiary that is required to become a
Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and
all certificates representing Equity Interests (to the extent certificated) that
are required to be pledged pursuant to the Collateral and Guarantee Requirement,
accompanied by



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undated stock powers or other appropriate instruments of transfer executed in
blank and instruments evidencing the intercompany Indebtedness held by such
Restricted Subsidiary and required to be pledged pursuant to the Collateral
Documents, indorsed in blank to the Collateral Agent and (y) cause each direct or
indirect parent of such Restricted Subsidiary that is required to be a Guarantor
pursuant to the Collateral and Guarantee Requirement to deliver any and all
certificates representing the outstanding Equity Interests (to the extent
certificated) of such Restricted Subsidiary that are required to be pledged
pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock
powers or other appropriate instruments of transfer executed in blank and
instruments evidencing the intercompany Indebtedness issued by such Restricted
Subsidiary and required to be pledged in accordance with the Collateral Documents,
indorsed in blank to the Collateral Agent; and




          (D) take, and cause such Restricted Subsidiary and each direct or indirect
parent of such Restricted Subsidiary that is required to become a guarantor
pursuant to the Guarantee and Collateral Requirement to take, whatever action
(including the recording of Mortgages, the filing of Uniform Commercial Code
financing statements and delivery of stock and membership interest certificates)
may be necessary in the reasonable opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid Liens required by the Collateral and Guarantee Requirement,
enforceable against all third parties in accordance with their terms, except as
such enforceability may be limited by Debtor Relief Laws and by general principles
of equity,




          (ii) within thirty (30) days after the request therefor by the Administrative Agent,
deliver to the Administrative Agent a signed copy of an opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan Parties
reasonably acceptable to the Administrative Agent as to such matters set forth in this
Section 6.11(a) as the Administrative Agent may reasonably request, and




          (iii) as promptly as practicable after the request therefor by the Administrative
Agent, deliver to the Administrative Agent with respect to each parcel of real property
that is owned by such Restricted Subsidiary and has a book value in excess of $7,250,000
any existing title reports, surveys or environmental assessment reports.



          (b) (i) [reserved];





          (ii) the Borrower shall obtain the security interests and Guarantees set forth on
Schedule 1.01B on or prior to the dates corresponding to such security interests
and Guarantees set forth on Schedule 1.01B; and



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          (iii) after the Original Closing Date, promptly after (x) the acquisition of any
material personal property by any Loan Party or (y) the acquisition of any owned real
property by any Loan Party with a book value in excess of $7,250,000, and if such personal
property or owned real property shall not already be subject to a perfected Lien pursuant
to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the
Administrative Agent and promptly thereafter shall cause such assets to be subjected to a
Lien to the extent required by the Collateral and Guarantee Requirement and will take, or
cause the relevant Loan Party to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect or record such Lien, including,
as applicable, the actions referred to in Section 6.13(b) with respect to real property.



          (c) Upon the Orbitz IPO (x) all Collateral granted by Orbitz TopCo and its Subsidiaries
pursuant to the Collateral Documents shall be released and shall be free and clear of all Liens
created by the Loan Documents and (y) all other obligations under the Loan Documents of Orbitz
TopCo or any of its Subsidiaries that are Subsidiary Guarantors shall also be released, and the
Lenders hereby authorize the Administrative Agent and the Collateral Agent to take all actions
requested by Borrower to effectuate such releases.




          SECTION 6.12. Compliance with Environmental Laws. Except, in each case, to the
extent that the failure to do so could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, comply, and take all reasonable actions to cause all lessees
and other Persons operating or occupying its properties to comply with all applicable Environmental
Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and, in each case to the extent required by Environmental Laws, conduct
any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials from any of its properties,
in accordance with the requirements of all Environmental Laws.




          SECTION 6.13. Further Assurances and Post-Closing Conditions.




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




          (b) In the case of any real property referred to in Section 6.11(b), provide the
Administrative Agent with Mortgages with respect to such owned real property within thirty (30)
days of the acquisition of, or, if requested by the Administrative Agent,






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entry into, or renewal of, a ground lease in respect of, such real property in each case
together with:





          (i) evidence that counterparts of the Mortgages have been duly executed, acknowledged
and delivered and are in form suitable for filing or recording in all filing or recording
offices that the Administrative Agent may deem reasonably necessary or desirable in order
to create a valid and subsisting perfected Lien on the property and/or rights described
therein in favor of the Administrative Agent or the Collateral Agent (as appropriate) for
the benefit of the Secured Parties and that all filing and recording taxes and fees have
been paid or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent;




          (ii) fully paid American Land Title Association Lender’s Extended Coverage title
insurance policies or the equivalent or other form available in each applicable
jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements and in
amount, reasonably acceptable to the Administrative Agent (not to exceed the value of the
real properties covered thereby), issued, coinsured and reinsured by title insurers
reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid
subsisting Liens on the property described therein, free and clear of all defects and
encumbrances, subject to Liens permitted by Section 7.01, and providing for such other
affirmative insurance (including endorsements for future advances under the Loan Documents)
and such coinsurance and direct access reinsurance as the Administrative Agent may
reasonably request;




          (iii) opinions of local counsel for the Loan Parties in states in which the real
properties are located, with respect to the enforceability and perfection of the Mortgages
and any related fixture filings in form and substance reasonably satisfactory to the
Administrative Agent;




          (iv) evidence that each such space lease contains a provision reasonably acceptable
to the Administrative Agent permitting a collateral assignment with respect to such
provisions; provided that the Administrative Agent shall be permitted to waive this
requirement if it is reasonably satisfied that the Borrower has used its commercially
reasonable efforts to comply with this requirement; and




          (v) such other evidence that all other actions that the Administrative Agent may
reasonably deem necessary or desirable in order to create valid and subsisting Liens on the
property described in the Mortgages has been taken.



          SECTION 6.14. Designation of Subsidiaries. The board of directors of Holdings may at
any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted
Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such
designation, no Default shall have occurred and be






133









 







continuing, (ii) immediately after giving effect to such designation, Holdings, the Borrower
and the Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis (it being understood
that if such designation is to be made effective prior to the date that the March 31, 2007 Test
Period has become effective, the level set forth in Section 7.11 for the March 31, 2007 Test Period
shall be deemed to apply), with the covenant set forth in Section 7.11 (and, as a condition
precedent to the effectiveness of any such designation, the Borrower shall deliver to the
Administrative Agent a certificate setting forth in reasonable detail the calculations
demonstrating such compliance) and (iii) no Subsidiary (other than Orbitz TopCo and its
Subsidiaries upon the consummation of the Orbitz IPO) may be designated as an Unrestricted
Subsidiary if it is a “Restricted Subsidiary” for the purpose of any Junior Financing, as
applicable, and upon the Orbitz IPO (x) all Collateral granted by Orbitz TopCo and its Subsidiaries
pursuant to the Collateral Documents shall be released and shall be free and clear of all Liens
created by the Loan Documents and (y) all other obligations under the Loan Documents of any of
Orbitz TopCo or any of its Subsidiaries that are Subsidiary Guarantors shall also be released.
Orbitz TopCo and its Subsidiaries shall continue to be Unrestricted Subsidiaries at all times from
and after the Orbitz IPO unless and until designated as a Restricted Subsidiary in accordance with
the other provisions of the Loan Documents applicable to designating Unrestricted Subsidiaries as
Restricted Subsidiaries. The designation of any Subsidiary as an Unrestricted Subsidiary shall
constitute an Investment by Holdings therein at the date of designation in an amount equal to the
net book value of Holdings’ investment therein. The designation of any Unrestricted Subsidiary as
a Restricted Subsidiary shall constitute the incurrence at the time of designation of any
Indebtedness or Liens of such Subsidiary existing at such time.




          SECTION 6.15. Flood Insurance. With respect to each Mortgaged Property, obtain flood
insurance in such total amount as the Administrative Agent or the Required Lenders may from time to
time reasonably require, if at any time the area in which any improvements are located on any
Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time.




          SECTION 6.16. Orbitz Indebtedness. If, upon or following the Orbitz IPO, Orbitz
Topco, any of its Subsidiaries or any other Person whose primary assets or operations comprise a
portion of the Orbitz Business and that is not then a Loan Party Guarantees or otherwise becomes
liable for any Indebtedness of Holdings and its Subsidiaries (other than Orbitz Topco, any of its
Subsidiaries or any other Person whose primary assets or operations comprise a portion of the
Orbitz Business), such Person shall become subject to the Collateral and Guarantee Requirement
hereunder as if such Person were a Restricted Subsidiary (it being understood that in such case
such Person shall, other than for purposes of granting guarantees and collateral pursuant to the
Collateral and Guarantee Requirement, not be considered a Restricted Subsidiary hereunder).




          SECTION 6.17. Post-Closing Matters. To the extent such items have not been delivered
as of the Third Amendment and Restatement Effective Date, within 120






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days after the Third Amendment and Restatement Effective Date, unless waived or extended by
the Collateral Agent in its sole discretion, the applicable Loan Party shall deliver to the
Collateral Agent, with respect to the Mortgage encumbering Mortgaged Property entered into prior to
the Second Amendment and Restatement Effective Date, as amended prior to the Third Amendment and
Restatement Effective Date pursuant to a first amendment (the “First Mortgage Amendment”), and as
further amended as of the Third Amendment and Restatement Effective Date pursuant to a second
mortgage amendment (the “Second Mortgage Amendment”):




          (a) a “date down” endorsement to the existing Mortgage Policy (or equivalent coverage)
assuring the Collateral Agent that the Mortgage encumbering the Mortgaged Property located at 5350
South Valentia Way, Greenwood Village, Colorado, as amended by the First Mortgage Amendment, as
further amended by the Second Mortgage Amendment, is a valid and enforceable first priority lien on
such Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties,
free and clear of all Liens except those Liens created or permitted by this Agreement and the
Collateral Documents or by the Administrative Agent or Collateral Agent, and such endorsement to
such Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to the
Administrative Agent or Collateral Agent; and




          (b) evidence
that all other actions, recordings and filings in connection with the
Second Mortgage
Amendment that the Administrative Agent may deem reasonably necessary shall have been taken,
completed or otherwise provided for in a manner reasonably satisfactory to the Administrative
Agent;



provided that the applicable Loan Party shall not be required to deliver the foregoing items if
such Mortgaged Property shall have been sold, transferred or otherwise disposed of pursuant to a
Disposition permitted by Section 7.05 within 120 days after the Third Amendment and Restatement
Effective Date.




ARTICLE VII




Negative Covenants



          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, Holdings and the Borrower shall not, nor shall they permit any of their
Restricted Subsidiaries to, directly or indirectly:




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




          (a) Liens pursuant to any Loan Document, including the Lien in favor of the Synthetic L/C
Issuer pursuant to the Tranche S Collateral Account Agreement;







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




          (c) Liens for taxes, assessments or governmental charges which are not overdue for a period
of more than thirty (30) days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;




          (d) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
construction contractors or other like Liens arising in the ordinary course of business which
secure amounts not overdue for a period of more than thirty (30) days or, if more than thirty (30)
days overdue, are unfiled and no other action has been taken to enforce such Lien or which are
being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;




          (e) (i) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation and (ii) pledges and
deposits in the ordinary course of business securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank guarantees for the
benefit of) insurance carriers providing property, casualty or liability insurance to Holdings, the
Borrower or any Restricted Subsidiary;




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




          (g) easements, rights-of-way, restrictions, encroachments, protrusions and other similar
encumbrances and minor title defects affecting real property which, in the aggregate, do not in any
case materially interfere with the ordinary conduct of the business of Holdings, the Borrower or
any material Subsidiary;




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




          (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens
attach concurrently with or within two hundred and seventy (270) days after the acquisition,
repair, replacement, construction or improvement (as applicable) of






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the property subject to such Liens, (ii) such Liens do not at any time encumber any property
except for accessions to such property other than the property financed by such Indebtedness and
the proceeds and the products thereof and (iii) with respect to Capitalized Leases, such Liens do
not at any time extend to or cover any assets (except for accessions to such assets) other than the
assets subject to such Capitalized Leases; provided that individual financings of equipment
provided by one lender may be cross collateralized to other financings of equipment provided by
such lender;




          (j) leases, licenses, subleases or sublicenses granted to others in the ordinary course of
business which do not (i) interfere in any material respect with the business of Holdings, the
Borrower or any material Subsidiary or (ii) secure any Indebtedness;




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




          (l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on the items in the course of collection, and (ii) in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of setoff) and which are within the general
parameters customary in the banking industry;




          (m) Liens (i) on cash advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Section 7.02(i) or to be applied against the purchase price for
such Investment, (ii) attaching to commodity trading accounts or other commodities brokerage
accounts incurred in the ordinary course of business and (iii) consisting of an agreement to
Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the
extent such Investment or Disposition, as the case may be, would have been permitted on the date of
the creation of such Lien;




          (n) Liens on property (i) of any Foreign Subsidiary that is not a Loan Party and (ii) that
does not constitute Collateral, which Liens secure Indebtedness of the applicable Foreign
Subsidiary permitted under Section 7.03;




          (o) Liens in favor of Holdings, the Borrower or a Restricted Subsidiary securing Indebtedness
permitted under Section 7.03(d);




          (p) Liens existing on property at the time of its acquisition or existing on the property of
any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a
Restricted Subsidiary pursuant to Section 6.14), in each case after the Original Closing Date
(other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary) and
the replacement, extension or renewal of any Lien permitted by this clause (p) upon or in the same
property previously subject thereto in connection with the replacement, extension or renewal
(without increase in the amount or any change in any direct or contingent obligor) of the amount or
value secured thereby; provided that (i) such Lien was not created in contemplation of such
acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or






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cover any other assets or property (other than the proceeds or products thereof and other than
after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred
prior to such time and which Indebtedness and other obligations are permitted hereunder that
require, pursuant to their terms at such time, a pledge of after-acquired property, it being
understood that such requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured
thereby is permitted under Section 7.03(e), (g) or (k);




          (q) any interest or title of a lessor under leases entered into by Holdings, the Borrower or
any of the Restricted Subsidiaries in the ordinary course of business;




          (r) second-priority Liens on all or a portion of the Collateral to secure Permitted
Refinancing Indebtedness, to the extent permitted by the definition of the term “Permitted
Refinancing Indebtedness”;




          (s) Liens encumbering out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by Holdings, the Borrower or any of the Restricted
Subsidiaries in the ordinary course of business permitted by this Agreement;




          (t) Liens deemed to exist in connection with Investments in repurchase agreements under
Section 7.02 and reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course
of business and not for speculative purposes;




          (u) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of Holdings, the Borrower or any Restricted Subsidiary
to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of
business of Holdings, the Borrower and the Restricted Subsidiaries or (iii) relating to purchase
orders and other agreements entered into with customers of Holdings, the Borrower or any Restricted
Subsidiary in the ordinary course of business;




          (v) Liens solely on any cash earnest money deposits made by Holdings, the Borrower or any of
the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;




          (w) (i) Liens placed upon the Equity Interests of any Restricted Subsidiary acquired pursuant
to a Permitted Acquisition to secure Indebtedness incurred pursuant to Section 7.03(g) in
connection with such Permitted Acquisition and (ii) Liens placed upon the assets of such Restricted
Subsidiary and any of its Subsidiaries to secure a Guarantee by such Restricted Subsidiary and its
Subsidiaries of any such Indebtedness incurred pursuant to Section 7.03(g);




          (x) ground leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located;







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          (y) Liens arising from precautionary Uniform Commercial Code financing statement filings;




          (z) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto.




          (aa) other Liens securing Indebtedness outstanding in an aggregate principal amount not to
exceed $72,500,000.




Notwithstanding the foregoing, no Liens on any IP Collateral shall be permitted at any time, other
than pursuant to Section 7.01(a), (b), (c), (h), (j), (m), (o), (p), (r), (u)(iii) or (w), and no
Liens (other than those referred to in Section 7.01(a) or (r)) shall be permitted on the Collateral
consisting of the Equity Interests of the Borrower or the Foreign Holdco.




Notwithstanding the foregoing, no Liens shall be permitted to exist directly or indirectly on any
Mortgaged Property other than pursuant to clauses (a), (b), (c), (d), (g), (h), (j), (p), (q), (r)
and (x) of this Section 7.01 (to the extent, with reference to clause (j) of this Section 7.01, the
Borrower and the applicable Loan Party shall use commercially reasonable efforts to cause such
leases, licenses, subleases or sublicenses to be subordinate to the lien of any Mortgage).




Notwithstanding the foregoing, no Liens shall be permitted to exist directly or indirectly on the
Tranche S Collateral Account or any asset contained therein other than pursuant to clause (a), (c),
(h) or (l) of this Section 7.01.




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




          (a) Investments by Holdings, the Borrower or a Restricted Subsidiary in assets that were Cash
Equivalents when such Investment was made;




          (b) loans or advances to officers, directors and employees of Holdings, the Borrower and the
Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment,
relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase
of Equity Interests of Holdings (or any direct or indirect parent thereof or after a Qualifying
IPO, the Borrower or any Intermediate Holding Company) (provided that the amount of such loans and
advances shall be contributed to the Borrower in cash as common equity) and (iii) for purposes not
described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding not
to exceed $7,250,000;




          (c) Investments (i) by Holdings, the Borrower or any Restricted Subsidiary in any Loan Party
(excluding any new Restricted Subsidiary which becomes a Loan Party and excluding any Foreign
Subsidiary), (ii) by any Restricted Subsidiary that is not a Loan Party in any other such
Restricted Subsidiary that is also not a Loan Party and (iii) by the Borrower or any Restricted
Subsidiary (A) in any Restricted Subsidiary that is not a Loan Party; provided that the aggregate
amount of such Investments in Persons that are not Loan Parties (together with, but without
duplication of, the aggregate






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consideration paid in respect of Permitted Acquisitions of Persons that do not become Loan
Parties pursuant to Section 7.02(i)(B), but with giving effect to any Investment permitted by
Section 7.02(q)) shall not exceed $362,500,000 (net of any return representing a return of capital
in respect of any such Investment) or (B) in any Foreign Subsidiary that is a Loan Party,
consisting of the contribution of Equity Interests of any other Foreign Subsidiary held directly by
the Borrower or such Restricted Subsidiary in exchange for Indebtedness, Equity Interests or a
combination thereof of the Foreign Subsidiary to which such contribution is made, (C) in any
Foreign Subsidiary, constituting an exchange of Equity Interests of such Foreign Subsidiary for
Indebtedness of such Foreign Subsidiary or (D) constituting Guarantees of Indebtedness or other
monetary obligations of Foreign Subsidiaries owing to any Loan Party, to the extent such Guarantees
are permitted under Section 7.03 and (iv) by any Foreign Subsidiary that is a Loan Party in any
other Foreign Subsidiary that is a Loan Party (other than any new Restricted Subsidiary that
becomes a Loan Party);




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




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




          (f) Investments (i) existing or contemplated on the Original Closing Date and set forth on
Schedule 7.02(f) and any modification, replacement, renewal, reinvestment or extension
thereof and (ii) existing on the Original Closing Date by the Borrower or any Restricted Subsidiary
in the Borrower or any other Restricted Subsidiary and any modification, renewal or extension
thereof; provided that the amount of any Investment permitted pursuant to this Section 7.02(f) is
not materially increased from the amount of such Investment on the Original Closing Date via the
transfer of assets from any of Holdings or any Subsidiary thereof to such Investment;




          (g) Investments in Swap Contracts permitted under Section 7.03;




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




          (i) the purchase or other acquisition of property and assets or businesses of any Person or
of assets constituting a business unit, a line of business or division of such Person, or Equity
Interests in a Person that, upon the consummation thereof, will be a wholly owned Subsidiary of
Holdings (including as a result of a merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this Section 7.02(i) (each, a “Permitted
Acquisition”):







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          (A) subject to clause (B) below, a majority of all property, assets and
businesses acquired in such purchase or other acquisition shall constitute
Collateral and each applicable Loan Party and any such newly created or acquired
Subsidiary (and, to the extent required under the Collateral and Guarantee
Requirement, the Subsidiaries of such created or acquired Subsidiary) shall be
Guarantors and shall have complied with the requirements of Section 6.11, within
the times specified therein (for the avoidance of doubt, this clause (A) shall not
override any provisions of the Collateral and Guarantee Requirement);




          (B) the aggregate amount of consideration paid in respect of acquisitions of
Persons that do not become Loan Parties (together with the aggregate amount of all
Investments in Foreign Subsidiaries that are not Loan Parties pursuant to Section
7.02(c)(iii)(A), but with giving effect to any Investments permitted under Section
7.02(q)) shall not exceed $362,500,000 (net of any return representing a return of
capital in respect of any such Investment);




          (C) the acquired property, assets, business or Person is in the same line of
business as Holdings and the Subsidiaries, taken as a whole;




          (D) the board of directors (or similar governing body) of the Person to be so
purchased or acquired shall not have indicated publicly its opposition to the
consummation of such purchase or acquisition (which opposition has not been
publicly withdrawn);




          (E) (1) immediately before and immediately after giving Pro Forma Effect to
any such purchase or other acquisition, no Default shall have occurred and be
continuing and (2) immediately after giving effect to such purchase or other
acquisition, Holdings, the Borrower and the Restricted Subsidiaries shall be in Pro
Forma Compliance with the covenant set forth in Section 7.11 for the Test Period in
effect at the time such purchase or other acquisition is to occur and, in the case
of acquisitions the aggregate consideration which is in excess of $36,250,000,
evidenced by a certificate from the Chief Financial Officer of the Borrower
demonstrating such compliance calculation in reasonable detail; and




          (F) the Borrower shall have delivered to the Administrative Agent, on behalf
of the Lenders, no later than five (5) Business Days after the date on which any
such purchase or other acquisition is consummated, a certificate of a Responsible
Officer, in form and substance reasonably satisfactory to the Administrative Agent,
certifying that all of the requirements set forth in this clause (i) have been
satisfied or will be satisfied on or prior to the consummation of such purchase or
other acquisition;



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          (j) the Transaction;




          (k) Investments in the ordinary course of business consisting of Article 3 endorsements for
collection or deposit and Article 4 customary trade arrangements with customers consistent with
past practices;




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




          (m) loans and advances to Holdings (or any direct or indirect parent thereof) in lieu of, and
not in excess of the amount of (after giving effect to any other loans, advances or Restricted
Payments in respect thereof), Restricted Payments to the extent permitted to be made to Holdings
(or such parent) in accordance with Section 7.06(h), (i) or (j);




          (n) so long as immediately after giving effect to any such Investment, no Default has
occurred and is continuing and Holdings, the Borrower and the Restricted Subsidiaries will be in
Pro Forma Compliance with the covenant set forth in Section 7.11 for the Test Period in effect at
the time such Investment is being made, other Investments that do not exceed $362,500,000 in the
aggregate, net of any return representing return of capital in respect of any such investment and
valued at the time of the making thereof; provided that, such amount shall be increased by (i) the
Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made
pursuant to Section 8.05) that are Not Otherwise Applied and (ii) if, as of the last day of the
immediately preceding Test Period (after giving Pro Forma Effect to such Investments) the Total
Leverage Ratio is 5.00:1 or less, the amount of Cumulative Excess Cash Flow that is Not Otherwise
Applied;




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




          (p) Investments to the extent that payment for such Investments is made solely with Qualified
Equity Interests of Holdings (or the Borrower or an Intermediate Holding Company after a Qualifying
IPO of Holdings, the Borrower or such Intermediate Holding Company);




          (q) Investments held by a Restricted Subsidiary (acquired after the Original Closing Date or
of a corporation merged into the Borrower or merged or consolidated with a Restricted Subsidiary in
accordance with Section 7.04 after the Original Closing Date), to the extent that such Investments
were not made in contemplation of or in connection with such acquisition, merger or consolidation
and were in existence on the date of such acquisition, merger or consolidation;







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          (r) Guarantees by Holdings, the Borrower or any Restricted Subsidiary of leases (other than
Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case
entered into in the ordinary course of business;




          (s) the Worldspan Acquisition; provided that such acquisition shall have been
consummated in accordance with the terms of the Worldspan Merger Agreement, without giving effect
to any amendments or waivers by the Borrower thereto that are materially adverse to the Lenders
without the reasonable consent of the Agents; and




          (t) on and following the Orbitz IPO, any Investments in Orbitz TopCo, so long as the amount
actually invested in Orbitz TopCo by Holdings or a Restricted Subsidiary does not increase upon and
following the Orbitz IPO (it being understood that increases in the value of Orbitz TopCo upon and
following the Orbitz IPO that do not result from Investments by Holdings or a Restricted Subsidiary
in Orbitz TopCo shall be permitted by this clause (t));




provided that no Investment in an Unrestricted Subsidiary that would otherwise be permitted under
this Section 7.02 shall be permitted hereunder to the extent that any portion of such Investment is
used to make any prepayments, redemptions, purchases, defeasances and other payments in respect of
Junior Financings.




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




          (a) Indebtedness of Holdings, the Borrower and any of its Subsidiaries under the Loan
Documents;




          (b) Indebtedness (i) outstanding on the Original Closing Date and listed on Schedule
7.03(b), provided that the letters of credit and surety bonds listed thereon must be
backstopped by a Letter of Credit issued hereunder and, other than in respect of any letter of
credit or any surety bond listed thereon or any drawing upon any such letter of credit or surety
bond, any Permitted Refinancing thereof; and (ii) intercompany Indebtedness outstanding on the
Original Closing Date;




          (c) Guarantees by Holdings, the Borrower or any Restricted Subsidiary in respect of
Indebtedness of Holdings, the Borrower or any Restricted Subsidiary otherwise permitted hereunder
(except that a Restricted Subsidiary that is not a Loan Party may not, by virtue of this Section
7.03(c), Guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under
this Section 7.03); provided that (A) no Guarantee by any Restricted Subsidiary of any High Yield
Note, Junior Financing or Permitted Refinancing Indebtedness shall be permitted unless such
Restricted Subsidiary shall have also provided a Guarantee of the Obligations substantially on the
terms set forth in the Guaranty and (B) if the Indebtedness being Guaranteed is subordinated to the
Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at
least as favorable to the Lenders as those contained in the subordination of such Indebtedness;





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          (d) Indebtedness of Holdings, the Borrower or any Restricted Subsidiary owing to
Holdings, the Borrower or any other Restricted Subsidiary to the extent constituting an Investment
permitted by Section 7.02; provided that, all such
Indebtedness of any Loan Party owed to any Person that is not a Loan Party shall be subject to
the subordination terms set forth in Section 5.03 of the Security Agreement;



          (e) (i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases)
financing the acquisition, construction, repair, replacement or improvement of fixed or capital
assets, other than software; provided that such Indebtedness is incurred concurrently with or
within two hundred and seventy (270) days after the applicable acquisition, construction, repair,
replacement or improvement, (ii) Attributable Indebtedness arising out of sale-leaseback
transactions permitted by Section 7.05(f) and (iii) any Permitted Refinancing of any Indebtedness
set forth in the immediately preceding clauses (i) and (ii); provided that the aggregate principal
amount of Indebtedness outstanding at any one time pursuant to this Section 7.03(e) shall not
exceed 5% of Total Assets at such time;



          (f) Indebtedness in respect of Swap Contracts designed to hedge against interest rates,
foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and
not for speculative purposes;



          (g) Indebtedness of the Borrower, any Foreign Subsidiary or any Guarantor (i) assumed in
connection with any Permitted Acquisition or (ii) incurred to finance a Permitted Acquisition, in
each case, that is secured only by the assets or business acquired in the applicable Permitted
Acquisition (including any acquired Equity Interests) and so long as both immediately prior and
after giving effect thereto, (A) no Default shall exist or result therefrom, (B) Holdings, the
Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenant set
forth in Section 7.11 for the Test Period in effect at the time of the assumption or incurrence of
such Indebtedness and (C) the aggregate principal amount of such Indebtedness and all Indebtedness
resulting from any Permitted Refinancing thereof at any time outstanding pursuant to this paragraph
(g) does not exceed $145,000,000; provided that the aggregate amount of Indebtedness outstanding at
Persons that are not Loan Parties pursuant to this clause (g) and clause (n) below shall not exceed
$100,000,000 at any one time;



          (h) (i) Indebtedness of Holdings, the Borrower or any Restricted Subsidiary (A) assumed in
connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in
contemplation of such Permitted Acquisition, or (B) incurred to finance a Permitted Acquisition and
(ii) any Permitted Refinancing of the foregoing; provided that, in each case, such Indebtedness and
all Indebtedness resulting from any Permitted Refinancing thereof (v) is unsecured, (w) both
immediately prior and after giving effect thereto, (1) no Default shall exist or result therefrom
and (2) Holdings, the Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with
the covenant set forth in Section 7.11 for the Test Period in effect at the time of the assumption
or incurrence of such Indebtedness, (x) matures after, and does not require any scheduled
amortization or other scheduled payments of principal prior to, the Latest Maturity Date in effect
at the time such Indebtedness is incurred (it being understood that



144









 




such Indebtedness may have
mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of clause (y)
hereof), (y) has terms and conditions (other than interest rate, redemption premiums and
subordination terms), taken as a
whole, that are not materially less favorable to the Borrower as the terms and conditions of
the High Yield Notes as of the Original Closing Date; provided that a certificate of a Responsible
Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence
of such Indebtedness, together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the
Borrower has determined in good faith that such terms and conditions satisfy the foregoing
requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Borrower within such five Business Day
period that it disagrees with such determination (including a reasonable description of the basis
upon which it disagrees), and (z) with respect to such Indebtedness described in the immediately
preceding clause (B) or any Permitted Refinancing thereof, is incurred by the Borrower or a
Guarantor; provided further that notwithstanding anything contained in the Loan Documents to the
contrary, (a) the maximum principal amount of all Indebtedness described in clause (A) of this
paragraph (together with any Permitted Refinancing of Indebtedness in respect thereof) with respect
to which a Restricted Subsidiary that is not a Guarantor may become liable shall be $145,000,000
and (b) the only obligors with respect to any Indebtedness incurred pursuant to clause (A) of this
paragraph or any Permitted Refinancing of Indebtedness in respect thereof shall be of those Persons
who were obligors of such Indebtedness immediately prior to such Permitted Acquisition;




          (i) Indebtedness representing deferred compensation to employees of the Borrower and the
Restricted Subsidiaries incurred in the ordinary course of business;



          (j) Indebtedness to current or former officers, directors and employees, their respective
estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of
Holdings permitted by Section 7.06;



          (k) Indebtedness incurred by Holdings, the Borrower or any Restricted Subsidiary in a
Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition to the
extent constituting indemnification obligations or obligations in respect of purchase price or
other similar adjustments;



          (l) Indebtedness consisting of obligations of Holdings, the Borrower or any Restricted
Subsidiary under deferred compensation or other similar arrangements incurred by such Person in
connection with the Transaction and Permitted Acquisitions or any other Investment expressly
permitted hereunder;



          (m) Cash Management Obligations and other Indebtedness in respect of netting services,
overdraft protections and similar arrangements in each case in connection with deposit accounts;



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          (n) Indebtedness in an aggregate principal amount not to exceed $362,500,000, at any time
outstanding; provided that a maximum of $145,000,000 in aggregate principal amount of such
Indebtedness (less the aggregate principal amount of
Indebtedness of Foreign Subsidiaries that are not Guarantors outstanding at any time under
Section 7.03(g)) may be incurred by Foreign Subsidiaries that are not Guarantors;



          (o) Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary course of business;



          (p) Indebtedness incurred by Holdings, the Borrower or any of the Restricted Subsidiaries in
respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued
or created in the ordinary course of business, including in respect of workers’ compensation
claims, health, disability or other employee benefits or property, casualty or liability insurance
or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding
workers’ compensation claims; provided that any reimbursement obligations in respect thereof are
reimbursed within 30 days following the incurrence thereof;



          (q) obligations in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees and similar obligations provided by Holdings, the Borrower or any of the
Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar
instruments related thereto, in each case in the ordinary course of business or consistent with
past practice;



          (r) [Reserved];



          (s) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the
face amount of such Letter of Credit;



          (t) Indebtedness in respect of the High Yield Notes and any Permitted Refinancing thereof;



          (u) Permitted Refinancing Indebtedness; and



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



          SECTION 7.04. Fundamental Changes. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of transactions) all
or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that:



          (a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the
purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the
Borrower shall be the continuing or surviving Person and (y) such merger does not result in the
Borrower ceasing to be incorporated under the Laws of the



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United States, any state thereof or the
District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that when any
Restricted Subsidiary that is a Loan Party
is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or
surviving Person;



          (b) (i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any
other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than the Borrower) may
liquidate or dissolve or change its legal form if Holdings determines in good faith that such
action is in the best interests of Holdings and its Subsidiaries and if not materially
disadvantageous to the Lenders;



          (c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided
that if the transferor in such a transaction is a Guarantor or a Borrower, then (i) the transferee
must either be the Borrower or a Guarantor or (ii) to the extent constituting an Investment, such
Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is
not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;



          (d) so long as no Default exists or would result therefrom, the Borrower may merge with any
other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or
(ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any
such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or
existing under the laws of the United States, any state thereof, the District of Columbia or any
territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the
Borrower under this Agreement and the other Loan Documents to which the Borrower is a party
pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative
Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have
by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor
Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that
its obligations thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger
or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed
that its obligations thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s
certificate and an opinion of counsel, each stating that such merger or consolidation and such
supplement to this Agreement or any Collateral Document comply with this Agreement; provided
further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be
substituted for, the Borrower under this Agreement;



          (e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may
merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02;
provided that the continuing or surviving Person shall be a



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Restricted Subsidiary, which together
with each of its Restricted Subsidiaries, shall have complied with the requirements of Section
6.11;




          (f) so long as no Default exists or would result therefrom and no material assets have been
transferred to such Subsidiaries from Holdings or any Subsidiary thereof from the Original Closing
Date to the date of such dissolution or liquidation, the Subsidiaries listed on Schedule
7.04(f) may be dissolved or liquidated; and



          (g) so long as no Default exists or would result therefrom, a merger, dissolution,
liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition
permitted pursuant to Section 7.05.



          SECTION 7.05. Dispositions. Make any Disposition or enter into any agreement to make
any Disposition, except:



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



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



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



          (d) Dispositions of property to the Borrower or to a Restricted Subsidiary; provided that if
the transferor of such property is a Guarantor or a Borrower (i) the transferee thereof must either
be a Borrower or a Guarantor or (ii) to the extent such transaction constitutes an Investment, such
transaction is permitted under Section 7.02;



          (e) Dispositions permitted by Sections 7.04 and 7.06 and Liens permitted by Section 7.01;



          (f) Dispositions of property (other than IP Collateral) pursuant to sale-leaseback
transactions; provided that (i) with respect to such property owned by Holdings, the Borrower or
any Restricted Subsidiary on the Original Closing Date, the fair market value of all property so
Disposed of after the Original Closing Date (taken together with the aggregate book value of all
property Disposed of pursuant to Section 7.05(j)) shall not exceed five percent (5%) of Total
Assets per year and (ii) with respect to such property acquired by Holdings, the Borrower or any
Restricted Subsidiary after the Original Closing Date, the applicable sale-leaseback transaction
occurs within two hundred and seventy (270) days after the acquisition or construction (as
applicable) of such property;



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          (g) Dispositions in the ordinary course of business of Cash Equivalents;



          (h) leases, subleases, licenses or sublicenses (including the provision of software under an
open source license), in each case in the ordinary course of business and which do not materially
interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries;



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



          (j) Dispositions of property not otherwise permitted under this Section 7.05; provided that
(i) at the time of such Disposition (other than any such Disposition made pursuant to a legally
binding commitment entered into at a time when no Default exists), no Default shall exist or would
result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance
on this clause (j) (taken together with the aggregate fair market value of all property Disposed of
pursuant to Section 7.05(f)) shall not exceed five percent (5%) of Total Assets per year and (iii)
with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of
$14,500,000, Holdings, the Borrower or a Restricted Subsidiary shall receive not less than 75% of
such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all
Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens
permitted by Section 7.01(s) and clauses (i) and (ii) of Section 7.01(u)); provided, however, that
for the purposes of this clause (iii), (A) any liabilities (as shown on Holdings’, the Borrower’s
or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes
thereto) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are
by their terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which Holdings, the Borrower and all
of the Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing, (B) any securities received by Holdings, the Borrower or such Restricted Subsidiary from
such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing of the applicable
Disposition and (C) any Designated Non-Cash Consideration received by Holdings, the Borrower or
such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration received pursuant to this clause
(C) that is at that time outstanding, not in excess of 2.5% of Total Assets (as such term is
defined in the Senior Notes Indenture as of the Original Closing Date) at the time of the receipt
of such Designated Non-Cash Consideration, with the fair market value of each item of Designated
Non-Cash Consideration being measured at the time received and without giving effect to subsequent
changes in value, shall be deemed to be cash;



          (k) any Disposition of any Subsidiary listed on Schedule 7.05(k) as amended on the
Second Amendment and Restatement Effective Date, so long as no material assets are transferred to
any such Subsidiary from Holdings or any Subsidiary thereof from the Original Closing Date to the
date of such Disposition;



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          (l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant
to customary buy/sell arrangements between, the joint venture parties set forth in joint venture
arrangements and similar binding arrangements;



          (m) any Disposition of any Subsidiary listed on Schedule 7.05(m) to any wholly owned
Subsidiary that is not a Loan Party so long as no material assets are transferred to any such
Subsidiary from Holdings or any Subsidiary thereof from the Original Closing Date to the date of
such Disposition;



          (n) any Disposition of common Equity Interests of Orbitz TopCo occurring upon the
consummation of the Orbitz IPO, so long as:




          (i) (x) the Net Cash Proceeds of such Disposition shall be used to prepay Term Loans
pursuant to Section 2.05(b)(ii)(A) and (y) the Net Cash Proceeds (other than amounts funded
solely under any revolving credit facility of Orbitz TopCo or any of its Subsidiaries) of
the first transaction or first series of related transactions whereby Orbitz TopCo or any
of its Subsidiaries incurs or guarantees material Indebtedness upon, in connection with or
after the consummation of the Orbitz IPO shall be used to prepay Term Loans pursuant to
Section 2.05(b)(ii)(A); provided that, without derogation of any obligations of the Loan
Parties in clauses (x) or (y) of this Section 7.05(n), in no event shall the amount applied
to prepay Term Loans with the Net Cash Proceeds referred to in clauses (x) and (y) of this
Section 7.05(n) be less than the amount necessary to prepay the Dollar Equivalent of
$775,000,000 in principal amount of Term Loans plus any accrued and unpaid interest
thereon; provided further that once the Borrower has applied the Net Cash Proceeds referred
to in clauses (x) and (y) to prepay the Term Loans in an amount of not less than the Dollar
Equivalent of $775,000,000, an aggregate principal amount of up to $100,000,000 of
additional Net Cash Proceeds referred to in clauses (x) and (y) shall not be required to be
used to prepay Term Loans; and




          (ii) substantially simultaneously with the consummation of the Orbitz IPO, the
Borrower shall be able to declare, and it shall have declared, Orbitz TopCo and its
Subsidiaries as Unrestricted Subsidiaries in accordance with the requirements of Section
6.14; and



          (o) any Disposition of Equity Interests of Orbitz TopCo following the Orbitz IPO; provided
that if the Total Leverage Ratio as of the last day of the immediately preceding Test Period as
determined on a Pro Forma Basis (as set forth on a certificate of a Responsible Officer provided by
the Borrower) is (x) greater than or equal to 4.0:1.0, 100% of the Net Cash Proceeds of such
Disposition shall be subject to Section 2.05(b)(ii), (y) less than 4.0:1.0 and greater than or
equal to 3.0:1.0, 50% of the Net Cash Proceeds shall be subject to Section 2.05(b)(ii) and (z) less
than 3.0:1.0, 0% of the Net Cash Proceeds of such Disposition shall be subject to Section
2.05(b)(ii);


provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to
Sections 7.05(e) and (m) and except for Dispositions from a Loan Party to






150









 







another Loan Party), shall be for no less than the fair market value of such property at the time
of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this
Section 7.05 to any Person other than Holdings, the Borrower or any Restricted Subsidiary, such
Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if
requested by the Administrative Agent, upon the certification by the Borrower that such Disposition
is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable,
shall be authorized to take any actions deemed appropriate in order to effect the foregoing. The
Disposition comprising the Orbitz IPO shall be made pursuant to Section 7.05(n) and not any other
provision of Section 7.05.




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



          (a) each Restricted Subsidiary may make Restricted Payments to Holdings, the Borrower and to
other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned
Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each
other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership
interests of the relevant class of Equity Interests);



          (b) Holdings, the Borrower and each Restricted Subsidiary may declare and make dividend
payments or other distributions payable solely in the Equity Interests (other than Disqualified
Equity Interests not otherwise permitted by Section 7.03) of such Person;



          (c) [Reserved];



          (d) Restricted Payments made on the Original Closing Date to consummate the Original Closing
Date Transactions;



          (e) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted
Subsidiaries may enter into and consummate transactions expressly permitted by any provision of
Section 7.04 or 7.08 other than Section 7.08(f);



          (f) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary
deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a
portion of the exercise price of such options or warrants;



          (g) Holdings (or the Borrower or any Intermediate Holding Company after a Qualifying IPO of
Holdings, the Borrower or such Intermediate Holding Company, as the case may be) may pay (or make
Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase,
retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any
such parent of Holdings or of the Borrower or any Intermediate Holding Company after a Qualifying
IPO of Holdings, the Borrower or such Intermediate Holding Company, as the case may be) by any
future, present or former employee or director of Holdings (or any direct or indirect parent of
Holdings) or any of its Subsidiaries pursuant to any employee or director equity



151









 




plan, employee or director stock option plan or any other employee or director benefit plan or
any agreement (including any stock subscription or shareholder agreement) with any employee or
director of Holdings or any of its Subsidiaries; provided that the aggregate amount of Restricted
Payments made pursuant to this clause (g) shall not exceed $29,000,000, in any calendar year (which
shall increase to $36,250,000 subsequent to the consummation of a Qualifying IPO of Holdings, the
Borrower or such Intermediate Holding Company, as the case may be) (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a maximum (without giving
effect to the following proviso) of $36,250,000 in any calendar year (which shall increase to
$72,500,000, subsequent to the consummation of a Qualifying IPO of Holdings, the Borrower or such
Intermediate Holding Company, as the case may be)); provided further that such amount in any
calendar year may be increased by an amount not to exceed:





          (i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified
Equity Interests) of Holdings and, to the extent contributed to Holdings, Equity Interests
of any of Holdings’ direct or indirect parent companies, in each case to members of
management, directors or consultants of Holdings, any of its Subsidiaries or any of its
direct or indirect parent companies that occurs after the Original Closing Date, to the
extent the Net Cash Proceeds from the sale of such Equity Interests have been Not Otherwise
Applied to the payment of Restricted Payments by virtue of Section 7.06(i); plus




          (ii) the Net Cash Proceeds of key man life insurance policies received by Holdings or
its Restricted Subsidiaries Not Otherwise Applied; less




          (iii) the amount of any Restricted Payments previously made with the cash proceeds
described in clauses (i) and (ii) of this Section 7.06(g);


provided further that any cancellation of Indebtedness owing to Holdings from members of management
of Holdings, any of Holdings’ direct or indirect parent companies or any of Holdings’ Restricted
Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any of its direct
or indirect parent companies will be deemed not to constitute a Restricted Payment for purposes of
this covenant or any other provision of this Agreement;




          (h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings:




          (i) the proceeds of which will be used to pay (or to make Restricted Payments to
allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant
jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the
relevant jurisdiction of Holdings (or such parent) attributable to Holdings, the Borrower
or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;



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          (ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted
Payments to allow any direct or indirect parent of Holdings to pay) its operating expenses
incurred in the ordinary course of business and other corporate overhead costs and expenses
(including administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary course of
business, in an aggregate amount not to exceed $4,350,000 in any fiscal year plus any
reasonable and customary indemnification claims made by directors or officers of Holdings
(or any parent thereof) attributable to the ownership or operations of the Borrower and its
Subsidiaries;




          (iii) the proceeds of which shall be used by Holdings to pay franchise taxes and
other fees, taxes and expenses required to maintain its (or any of its direct or indirect
parents’) corporate existence;




          (iv) the proceeds of which shall be used by Holdings to make Restricted Payments
permitted by Section 7.06(g);




          (v) to finance any Investment permitted to be made pursuant to Section 7.02; provided
that (A) such Restricted Payment shall be made substantially concurrently with the closing
of such Investment and (B) Holdings shall, immediately following the closing thereof, cause
(1) all property acquired (whether assets or Equity Interests) to be contributed to the
Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in
Section 7.04) of the Person formed or acquired into the Borrower or its Restricted
Subsidiaries in order to consummate such Permitted Acquisition, in each case, in accordance
with the requirements of Section 6.11; and




          (vi) the proceeds of which shall be used by Holdings to pay (or to make Restricted
Payments to allow any direct or indirect parent thereof to pay) customary fees and expenses
(other than to Affiliates) related to any unsuccessful equity or debt offering permitted by
this Agreement;



          (i) in addition to the foregoing Restricted Payments and so long as no Default shall have
occurred and be continuing or would result therefrom, the Borrower may make additional Restricted
Payments to Holdings the proceeds of which may be utilized by Holdings to make additional
Restricted Payments, in an aggregate amount, together with the aggregate amount of (1) prepayments,
redemptions, purchases, defeasances and other payments in respect of Junior Financings made
pursuant to Section 7.13(a)(iv) and (2) loans and advances to Holdings made pursuant to Section
7.02(m) in lieu of Restricted Payments permitted by this clause (i), not to exceed the sum of (i)
$145,000,000, (ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances
(other than Permitted Equity Issuances made pursuant to Section 8.05) that are Not Otherwise
Applied and (iii) if the Total Leverage Ratio as of the last day of the immediately preceding Test
Period (after giving Pro Forma Effect to such additional Restricted Payments) is 5.00:1 or less,
the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied. For the purpose of this
Agreement, “Cumulative Excess



153









 




Cash Flow” means the sum of Excess Cash Flow (but not less than zero in any period) for the
fiscal year ending on December 31, 2007 and Excess Cash Flow for each succeeding and completed
fiscal year (it being understood that no Excess Cash Flow generated during any period shall be
deemed to be Cumulative Excess Cash Flow until the financial statements for such period are
delivered pursuant to Section 6.01(a));




          (j) Holdings or the Borrower may make Restricted Payments with the proceeds of the issuance
of Indebtedness of Holdings; and



          (k) Restricted Payments made on the Worldspan Closing Date to consummate the Worldspan
Transactions.



          SECTION 7.07. Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower and the Restricted
Subsidiaries on the Original Closing Date or any business reasonably related or ancillary thereto.



          SECTION 7.08. Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of Holdings whether or not in the ordinary course of business, other than (a)
transactions among Loan Parties or any Restricted Subsidiary or any entity that becomes a
Restricted Subsidiary as a result of such transaction, (b) on terms substantially as favorable to
Holdings, the Borrower or such Restricted Subsidiary as would be obtainable by Holdings, the
Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a
Person other than an Affiliate, (c) the payment of fees and expenses related to the Transaction,
(d) the issuance of Equity Interests to the management of Holdings or any of its Subsidiaries in
connection with the Transaction, (e) the payment of management and monitoring fees to the Sponsor
in an aggregate amount in any fiscal year not to exceed the amount permitted to be paid pursuant to
the Sponsor Management Agreement as in effect on the Original Closing Date and any Sponsor
Termination Fees not to exceed the amount set forth in the Sponsor Management Agreement as in
effect on the Original Closing Date and related indemnities and reasonable expenses, (f) equity
issuances, repurchases, retirements or other acquisitions or retirements of Equity Interests by
Holdings permitted under Section 7.06, (g) loans and other transactions by Holdings, the Borrower
and the Restricted Subsidiaries to the extent permitted under this Article VII, (h) employment and
severance arrangements between Holdings, the Borrower and the Restricted Subsidiaries and their
respective officers and employees in the ordinary course of business, (i) payments by Holdings (and
any direct or indirect parent thereof), the Borrower and the Restricted Subsidiaries pursuant to
the tax sharing agreements among Holdings (and any such parent thereof), the Borrower and the
Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation
of the Borrower and the Restricted Subsidiaries, (j) the payment of customary fees and reasonable
out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of
Holdings, the Borrower and the Restricted Subsidiaries in the ordinary course of business to the
extent attributable to the ownership or operation of Holdings, the Borrower and the Restricted
Subsidiaries, (k) transactions pursuant to permitted agreements in existence on the Original
Closing Date and set forth on Schedule 7.08 or any amendment thereto to the



154









 




extent such an amendment is not adverse to the Lenders in any material respect, (l) dividends,
redemptions and repurchases permitted under Section 7.06, and (m) customary payments by
Holdings, the Borrower and any Restricted Subsidiaries to the Sponsor made for any financial
advisory, financing, underwriting or placement services or in respect of other investment banking
activities (including in connection with acquisitions or divestitures), which payments are approved
by the majority of the members of the board of directors or a majority of the disinterested members
of the board of directors of Holdings in good faith.




          SECTION 7.09. Burdensome Agreements. Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that limits the ability of (a)
any Restricted Subsidiary that is not a Guarantor to make Restricted Payments to the Borrower or
any Guarantor or (b) the Borrower or any Loan Party to create, incur, assume or suffer to exist
Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and
the Obligations or under the Loan Documents; provided that the foregoing clauses (a) and (b) shall
not apply to Contractual Obligations which (i) (x) exist on the Original Closing Date and (to the
extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto and
(y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement
evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension
or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not
expand the scope of such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the
time such Restricted Subsidiary first becomes a Restricted Subsidiary, so long as such Contractual
Obligations were not entered into solely in contemplation of such Person becoming a Restricted
Subsidiary; provided further that this clause (ii) shall not apply to Contractual Obligations that
are binding on a Person that becomes a Restricted Subsidiary pursuant to Section 6.14, (iii)
represent Indebtedness of a Restricted Subsidiary which is not a Loan Party which is permitted by
Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.05, (v) are
customary provisions in joint venture agreements and other similar agreements applicable to joint
ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in
the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of
any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative
pledge relates to the property financed by or the subject of such Indebtedness (and excluding in
any event any Indebtedness constituting any Junior Financing), (vii) are customary restrictions on
leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such
restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by any
agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e) or 7.03(g) to the
extent that such restrictions apply only to the property or assets securing such Indebtedness or,
in the case of Indebtedness incurred pursuant to Section 7.03(g) only, to the Restricted
Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the Borrower or any
Restricted Subsidiary, (x) are customary provisions restricting assignment of any agreement entered
into in the ordinary course of business, (xi) are restrictions on cash or other deposits imposed by
customers under



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contracts entered into in the ordinary course of business or (xii) are restrictions set forth
in Permitted Refinancing Indebtedness Documents.




          SECTION 7.10. Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, in a manner inconsistent with the uses set forth in the preliminary
statements to this Agreement.



          SECTION 7.11. Maximum Total Leverage Ratio. Permit the Total Leverage Ratio as of
any date set forth below to be greater than the ratio set forth below opposite such date:



	 	 	 	 	 	 	 	 	 
	Fiscal Year	 	March 31	 	June 30	 	September 30	 	December 31
	2007
	 	7.75:1
	 	7.60:1
	 	7.50:1
	 	7.25:1
	2008
	 	7.25:1
	 	7.25:1
	 	7.00:1
	 	6.75:1
	2009
	 	6.75:1
	 	6.75:1
	 	6.50:1
	 	6.00:1
	2010
	 	6.00:1
	 	6.00:1
	 	5.75:1
	 	5.75:1
	2011
	 	5.75:1
	 	5.75:1
	 	5.75:1
	 	5.50:1
	2012
	 	5.50:1
	 	5.25:1
	 	5.00:1
	 	4.75:1
	2013
	 	4.75:1
	 	4.50:1
	 	4.25:1
	 	4.00:1
	Thereafter
	 	4.00:1
	 	4.00:1
	 	4.00:1
	 	4.00:1






          SECTION 7.12. Accounting Changes. Make any change in fiscal year; provided, however,
that Holdings may, upon written notice to the Administrative Agent, change its fiscal year to any
other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower
and the Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary to reflect such change in fiscal year.



          SECTION 7.13. Prepayments, Etc. of Indebtedness.



          (a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner (it being understood that payments of regularly scheduled interest shall be
permitted) the Senior Subordinated Notes, any subordinated Indebtedness incurred under Section
7.03(h) or any other Indebtedness that is required to be subordinated to the Obligations pursuant
to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in
violation of any subordination terms of any Junior Financing Documentation, except (i) the
refinancing thereof with the Net Cash Proceeds of any Indebtedness (to the extent such Indebtedness
constitutes a Permitted Refinancing and, if applicable, is permitted pursuant to Section 7.03(h)),
to the extent not required to prepay any Loans or Facility pursuant to Section 2.05(b), or of any
Indebtedness of Holdings, (ii) the conversion of any Junior Financing to Equity Interests (other
than Disqualified Equity Interests) of Holdings or any of its direct or indirect parents, (iii) the
prepayment of Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any
Restricted Subsidiary to the extent permitted by the Collateral Documents and (iv) prepayments,
redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to
their scheduled maturity in an aggregate amount, together with the aggregate amount of (1)
Restricted



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Payments made pursuant to Section 7.06(i) and (2) loans and advances to Holdings made pursuant
to Section 7.02(m), not to exceed the sum of (i) $145,000,000, (ii) the amount of the Net Cash
Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to
Section 8.05) made within eighteen (18) months prior thereto that are Not Otherwise Applied and
(iii) if, as of the last day of the immediately preceding Test Period (after giving Pro Forma
Effect to such prepayments, redemptions, purchases, defeasances and other payments) the Total
Leverage Ratio is 5.00:1 or less, the amount of Cumulative Excess Cash Flow that is Not Otherwise
Applied.




          (b) Amend, modify or change in any manner materially adverse to the interests of the Lenders
any term or condition of any Junior Financing Documentation without the consent of the Arrangers.



          SECTION 7.14. Equity Interests of the Borrower and Restricted Subsidiaries. Permit
any Domestic Subsidiary that is a Restricted Subsidiary to become a non-wholly owned Subsidiary,
except to the extent such Restricted Subsidiary continues to be a Guarantor or in connection with a
sale of all of such Restricted Subsidiary or the designation of an Unrestricted Subsidiary pursuant
to Section 6.14.



          SECTION 7.15. Holding Company; Foreign Subsidiaries. In the case of Holdings and
Intermediate Parent, conduct, transact or otherwise engage in any business or operations other
than those incidental to (i) its ownership of the Equity Interests of the Borrower and the Foreign
Holdco or other Foreign Subsidiaries, (ii) the maintenance of its legal existence, (iii) the
performance of the Loan Documents, the Purchase Agreement and the other agreements contemplated by
the Purchase Agreement, (iv) any public offering of its common stock or any other issuance of its
Equity Interests not prohibited by this Article VII or (v) any transaction that Holdings or
Intermediate Parent is permitted to enter into or consummate under this Article VII.



ARTICLE VIII




Events of Default and Remedies



          SECTION 8.01. Events of Default. Any of the following events referred to in any of
clauses (a) through (m) inclusive of this Section 8.01 shall constitute an “Event of Default”:



          (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required
to be paid herein, any amount of principal of any Loan, or (ii) within five (5) Business Days after
the same becomes due, any interest on any Loan or any other amount payable hereunder or with
respect to any other Loan Document; or



          (b) Specific Covenants. Holdings or the Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.03(a) or 6.05(a) (solely with respect to
Holdings and the Borrower) or Article VII; provided that any Event of Default under Section 7.11 is
subject to cure as contemplated by Section 8.05; or



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



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



          (e) Cross-Default. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment
beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise), in respect of any Indebtedness (other
than Indebtedness hereunder) having an aggregate principal amount of not less than the Threshold
Amount, or (B) fails to observe or perform any other agreement or condition relating to any such
Indebtedness, or any other event occurs (other than, with respect to Indebtedness consisting of
Secured Hedge Agreements, termination events or equivalent events pursuant to the terms of such
Secured Hedge Agreements), the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; provided that this clause (e)(B) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness,
if such sale or transfer is permitted hereunder and under the documents providing for such
Indebtedness; or



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



          (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts in excess of
the Threshold Amount as they become due, or (ii) any writ or



158









 




warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of the Loan Parties, taken as a whole, and is not released, vacated
or fully bonded within sixty (60) days after its issue or levy; or




          (h) Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final
judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount
(to the extent not covered by independent third-party insurance as to which the insurer has been
notified of such judgment or order and has not denied or failed to acknowledge coverage thereof)
and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded
pending an appeal for a period of sixty (60) consecutive days; or



          (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of any Loan Party under
Title IV of ERISA in an aggregate amount which could reasonably be expected to result in a Material
Adverse Effect, (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could
reasonably be expected to result in a Material Adverse Effect, or (iii) a termination, withdrawal
or noncompliance with applicable law or plan terms or termination, withdrawal or other event
similar to an ERISA Event occurs with respect to a Foreign Plan that could reasonably be expected
to result in a Material Adverse Effect; or



          (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or as a
result of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in
writing the validity or enforceability of any provision of any Loan Document; or any Loan Party
denies in writing that it has any or further liability or obligation under any Loan Document (other
than as a result of repayment in full of the Obligations and termination of the Aggregate
Commitments), or purports in writing to revoke or rescind any Loan Document; or



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



          (l) Collateral Documents. (i) Any Collateral Document after delivery thereof pursuant to
Section 4.01 of the Original Credit Agreement, Section 4.02 of the Second Amended and Restated
Credit Agreement or Section 6.11 shall for any reason (other than pursuant to the terms thereof,
including as a result of a transaction permitted under Section 7.04 or 7.05) cease to create a
valid and perfected lien, with the priority required by the Collateral Documents (or other security
purported to be created on the applicable Collateral), on and security interest in any material
portion of the Collateral purported to be covered thereby, subject to Liens permitted under Section
7.01, except to the extent that any such loss of perfection or priority results from the failure of
the Administrative Agent or the Collateral Agent to maintain possession of certificates



159









 




actually delivered to it representing securities pledged under the Collateral Documents or to
file Uniform Commercial Code continuation statements and except as to Collateral consisting of real
property to the extent that such losses are covered by a lender’s title insurance policy and such
insurer has not denied or failed to acknowledge coverage, or (ii) any of the Equity Interests of
the Borrower ceasing to be pledged pursuant to the Security Agreement free of Liens other than
Liens created by the Security Agreement or any nonconsensual Liens arising solely by operation of
Law; or




          (m) Junior Financing Documentation. (i) Any of the Obligations of the Loan Parties under the
Loan Documents for any reason shall cease to be “Senior Indebtedness” (or any comparable term) or
“Senior Secured Financing” (or any comparable term) under, and as defined in any Junior Financing
Documentation or (ii) the subordination provisions set forth in any Junior Financing Documentation
shall, in whole or in part, cease to be effective or cease to be legally valid, binding and
enforceable against the holders of any Junior Financing, if applicable.



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



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



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



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



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


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




          SECTION 8.03. Exclusion of Immaterial Subsidiaries. Solely for the purpose of
determining whether a Default has occurred under clause (f) or (g) of Section 8.01, any reference
in any such clause to any Restricted Subsidiary or Loan Party shall be



160









 




deemed not to include any Restricted Subsidiary affected by any event or circumstances
referred to in any such clause that did not, as of the last day of the most recent completed fiscal
quarter of Holdings, have assets with a value in excess of 5% of the consolidated total assets of
Holdings, Borrower and the Restricted Subsidiaries and did not, as of the four quarter period
ending on the last day of such fiscal quarter, have revenues exceeding 5% of the total revenues of
Holdings, the Borrower and the Restricted Subsidiaries (it being agreed that all Restricted
Subsidiaries affected by any event or circumstance referred to in any such clause shall be
considered together, as a single consolidated Restricted Subsidiary, for purposes of determining
whether the condition specified above is satisfied).




          SECTION 8.04. Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:




     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (other than principal and interest, but including Attorney Costs
payable under Section 10.04 and amounts payable under Article 3) payable to the
Administrative Agent in its capacity as such;




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




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




     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, the Swap Termination Value under Secured Hedge Agreements and
the Cash Management Obligations, ratably among the Secured Parties in proportion to the
respective amounts described in this clause Fourth held by them;




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




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



161









 






Obligations owing to the Administrative Agent and the other Secured Parties on such
date; and




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


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




          SECTION 8.05. Borrower’s Right to Cure.



          (a) Notwithstanding anything to the contrary contained in Section 8.01, in the event of any
Event of Default resulting from a violation of the covenant set forth in Section 7.11 and until the
expiration of the tenth (10th) day after the date on which financial statements are required to be
delivered with respect to the applicable fiscal quarter hereunder, Holdings or an Intermediate
Holding Company (or, following a Qualifying IPO, the Borrower) may engage in a Permitted Equity
Issuance to any of the Equity Investors and apply the amount of the Net Cash Proceeds thereof to
increase Consolidated EBITDA with respect to such applicable quarter; provided that such Net Cash
Proceeds (i) are actually received by the Borrower through capital contribution of such Net Cash
Proceeds by Holdings or an Intermediate Holding Company to the Borrower no later than ten (10) days
after the date on which financial statements are required to be delivered with respect to such
fiscal quarter hereunder, (ii) are Not Otherwise Applied and (iii) do not exceed the aggregate
amount necessary to cure such Event of Default from a violation of the covenant set forth in
Section 7.11 for any applicable period. The parties hereby acknowledge that this Section 8.05(a)
may not be relied on for purposes of calculating any financial ratios other than as applicable to
Section 7.11 (and, for the avoidance of doubt, not the financial ratios set forth in the definition
of the term “Applicable Rate”) and shall not result in any adjustment to any amounts other than the
amount of the Consolidated EBITDA referred to in the immediately preceding sentence.



          (b) In each period of four fiscal quarters, there shall be at least two (2) consecutive
fiscal quarters in which no cure set forth in Section 8.05(a) is made.



ARTICLE IX




Administrative Agent and Other Agents



          SECTION 9.01. Appointment and Authorization of Agents.



          (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such



162









 




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




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



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



          (d) The Administrative Agent shall also act as the deposit account agent for the Synthetic
L/C Issuer and the Non-Extended Synthetic L/C Lenders, and each of the Non-Extended Synthetic L/C
Lenders (in its capacities as a Lender and Synthetic L/C Issuer (if applicable)) hereby irrevocably
appoints and authorizes the Administrative



163









 




Agent to act as the agent thereof and to take such actions on its behalf and to exercise such
powers and discretion as are reasonably incidental thereto.




          SECTION 9.02. Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document (including for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents or of exercising any rights and remedies thereunder) by or through agents, employees or
attorneys-in-fact including for the purpose of any Borrowing or payment in Alternative Currencies,
such sub-agents as shall be deemed necessary by the Administrative Agent and shall be entitled to
advice of counsel and other consultants or experts concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any
agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or
willful misconduct (as determined in the final judgment of a court of competent jurisdiction).



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



          SECTION 9.04. Reliance by Agents.



          (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Loan Party), independent accountants and other experts selected
by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders
as it



164









 




deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.




          (b) For purposes of determining compliance with the conditions specified in Section 4.01 of
the Original Credit Agreement or the Second Amended and Restated Credit Agreement, or any
corresponding Section of any amendment agreement with respect to this Agreement (including the
Third Amendment and Restatement Agreement), each Lender that has signed this Agreement or any such
amendment agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the proposed date of effectiveness of this Agreement or any such
amendment agreement specifying its objection thereto.



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



          SECTION 9.06. Credit Decision; Disclosure of Information by Agents. Each Lender
acknowledges that no Agent-Related Person has made any representation or warranty to it, and that
no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their possession. Each Lender
represents to each Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to



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extend credit to the Borrower and the other Loan Parties hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall
not have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come
into the possession of any Agent-Related Person.




          SECTION 9.07. Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related
Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be
liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities
resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as
determined by the final judgment of a court of competent jurisdiction; provided that no action
taken in accordance with the directions of the Required Lenders (or such other number or percentage
of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section
9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or
any other Person. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses
by or on behalf of the Borrower, provided that such reimbursement by the Lenders shall not affect
the Borrower’s continuing reimbursement obligations with respect thereto. The undertaking in this
Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.



          SECTION 9.08. Agents in their Individual Capacities. UBS AG, Stamford Branch and its
Affiliates may make loans to, issue letters of credit for the account of, accept deposits from,
acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their respective Affiliates as
though UBS AG, Stamford Branch were



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not the Administrative Agent or an L/C Issuer hereunder and without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities, UBS AG, Stamford Branch or
its Affiliates may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such Loan Party or such
Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide
such information to them. With respect to its Loans, UBS AG, Stamford Branch shall have the same
rights and powers under this Agreement as any other Lender and may exercise such rights and powers
as though it were not the Administrative Agent or an L/C Issuer, and the terms “Lender” and
“Lenders” include UBS AG, Stamford Branch in its individual capacity.




          SECTION 9.09. Successor Agents. The Administrative Agent may resign as the
Administrative Agent upon thirty (30) days’ notice to the Lenders and the Borrower. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the
Borrower at all times other than during the existence of an Event of Default under Section 8.01(f)
or (g) (which consent of the Borrower shall not be unreasonably withheld or delayed). If no
successor agent is appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a
successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such
successor administrative agent and/or supplemental administrative agent, as the case may be, and
the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent
shall be terminated. After the retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement. If no successor agent has accepted appointment as the Administrative
Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as provided for above.
Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and
upon the execution and filing or recording of such financing statements, or amendments thereto, and
such amendments or supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to (a) continue the
perfection of the Liens granted or purported to be granted by the Collateral Documents or (b)
otherwise ensure that the Collateral and Guarantee Requirement is satisfied, the Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents. After the retiring
Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this
Article



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9 shall continue in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Administrative Agent.




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



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



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agents and their respective
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and
10.04.




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



          SECTION 9.11. Collateral and Guaranty Matters. The Lenders irrevocably agree that:



          (a) any Lien on any property granted to or held by the Administrative Agent or the Collateral
Agent under any Loan Document shall be automatically released (i) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than (x) obligations under Secured Hedge
Agreements not yet due and payable, (y) Cash Management Obligations not yet due and payable and (z)
contingent indemnification obligations not yet accrued and payable) and the expiration or



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termination of all Letters of Credit, (ii) at the time the property subject to such Lien is
transferred or to be transferred as part of or in connection with any transfer permitted hereunder
or under any other Loan Document to any Person other than Holdings, the Borrower or any of its
Domestic Subsidiaries that are Restricted Subsidiaries, (iii) subject to Section 10.01, if the
release of such Lien is approved, authorized or ratified in writing by the Required Lenders, or
(iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor
from its obligations under its Guaranty pursuant to clause (c) below;




          (b) to release or subordinate any Lien on any property granted to or held by the
Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on
such property that is permitted by Section 7.01(i); and



          (c) any Guarantor shall be automatically released from its obligations under the Guaranty if
such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation
permitted hereunder; provided that no such release shall occur if such Guarantor continues to be a
guarantor in respect of the High Yield Notes or any Junior Financing.



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



          In addition, each Lender acknowledges that obligations of the Borrower and the Guarantors
under the Permitted Refinancing Indebtedness and the Permitted Refinancing Indebtedness Documents,
and certain obligations related thereto, may be secured by Liens on assets of the Borrower and the
Guarantors that constitute Collateral. Each Lender hereby irrevocably (i) authorizes the
Administrative Agent and/or the Collateral Agent to execute and deliver the intercreditor agreement
referred to in the definition of the term “Permitted Refinancing Indebtedness” and any documents
relating thereto (including any amendments to the Collateral Documents) as the Administrative Agent
shall determine to be appropriate to cause the Permitted Refinancing Indebtedness, and certain
obligations related thereto, to be secured on a second priority basis with the Obligations, in each
case without any further consent, authorization or other action by any Lender, (ii) agrees that,
upon the execution and delivery of such intercreditor agreement or any such document, each Lender
will be bound by the provisions thereof as if it were a signatory thereto and will take no actions
contrary to the provisions thereof and (iii) agrees that none of the Lenders or any other Secured
Party shall have any right of action whatsoever against the Administrative Agent or the Collateral
Agent as a result



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of any action taken by such Agent pursuant to this paragraph or in accordance with the terms
of such intercreditor agreement or any such document.




          SECTION 9.12. Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a “syndication
agent,” “co-documentation agent”, “joint bookrunner” or “arranger” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than those applicable to
all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking action hereunder.



          SECTION 9.13. Appointment of Supplemental Administrative Agents.



          (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no
violation of any Law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction. It is recognized
that in case of litigation under this Agreement or any of the other Loan Documents, and in
particular in case of the enforcement of any of the Loan Documents, or in case the Administrative
Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any
other action which may be desirable or necessary in connection therewith, the Administrative Agent
is hereby authorized to appoint an additional individual or institution selected by the
Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative
agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional
individual or institution being referred to herein individually as a “Supplemental Administrative
Agent” and collectively as “Supplemental Administrative Agents”).



          (b) In the event that the Administrative Agent appoints a Supplemental Administrative Agent
with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or
intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or
conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to
enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with
respect to such Collateral and to perform such duties with respect to such Collateral, and every
covenant and obligation contained in the Loan Documents and necessary to the exercise or
performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by
either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions
of this Article 9 and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall
inure to the benefit of such Supplemental Administrative Agent and all references therein to the
Administrative Agent shall be deemed to be references to the Administrative Agent and/or such
Supplemental Administrative Agent, as the context may require.



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          (c) Should any instrument in writing from the Borrower, Holdings or any other Loan Party be
required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more
fully and certainly vesting in and confirming to him or it such rights, powers, privileges and
duties, the Borrower or Holdings, as applicable, shall, or shall cause such Loan Party to, execute,
acknowledge and deliver any and all such instruments promptly upon request by the Administrative
Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such
Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised
by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.



ARTICLE X




Miscellaneous



          SECTION 10.01. Amendments, Etc. Except as otherwise set forth in this Agreement, no
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent
to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and each such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that, no such amendment, waiver or consent shall:



          (a) extend or increase the Commitment of any Lender without the written consent of each
Lender directly affected thereby (it being understood that a waiver of any condition precedent set
forth in Section 4.03 or the waiver of any Default, mandatory prepayment or mandatory reduction of
the Commitments shall not constitute an extension or increase of any Commitment of any Lender);



          (b) postpone any date scheduled for, or reduce the amount of, any payment of principal or
interest under Section 2.07 or 2.08 without the written consent of each Lender directly affected
thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory
prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the
payment of principal or interest;



          (c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or
other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby, it being understood that any change to the definition of
Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction in
the rate; provided that, only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the
Default Rate;



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          (d) change any provision of this Section 10.01, the definition of “Required Lenders” or “Pro
Rata Share” or Section 2.06(c), 8.04 or 2.13 without the written consent of each Lender affected
thereby;



          (e) other than in a transaction permitted under Section 7.05, release all or substantially
all of the Collateral in any transaction or series of related transactions, without the written
consent of each Lender;



          (f) other than in a transaction permitted under Section 7.04 or Section 7.05, release all or
substantially all of the aggregate value of the Guarantees, without the written consent of each
Lender; or



          (g) change the currency in which any Loan is denominated of any Loan without the written
consent of the Lender holding such Loans;


and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed
by each L/C Issuer in addition to the Lenders required above, affect the rights or duties of an L/C
Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent
under this Agreement or any other Loan Document; (iv) Section 10.07(h) may not be amended, waived
or otherwise modified without the consent of each Granting Lender all or any part of whose Loans
are being funded by an SPC at the time of such amendment, waiver or other modification; and (v) the
consent of Lenders holding more than 50% of any Class of Commitments shall be required with respect
to any amendment that by its terms adversely affects the rights of such Class in respect of
payments hereunder in a manner different than such amendment affects other Classes.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).




          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 Loan Documents with the Tranche B
Dollar Term Loans, the Euro Term Loans, the Revolving Credit Loans and the Synthetic L/C Loans and
the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders.



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          In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Dollar
Replacement Term Loans or Euro Replacement Term Loans (as defined below) to permit the refinancing
of all outstanding Tranche B Dollar Term Loans (“Dollar Refinanced Term Loans”) or Euro Term Loans
(“Euro Refinanced Term Loans”) with a replacement Dollar term loan tranche denominated in Dollars
(“Dollar Replacement Term Loans”) or Euro term loan tranche denominated in Euros (“Euro Replacement
Term Loans”), respectively, hereunder; provided that (a) the aggregate principal amount of such
Dollar Replacement Term Loans or Euro Replacement Term Loans shall not exceed the aggregate
principal amount of such Dollar Refinanced Term Loans or Euro Refinanced Term Loans, respectively,
(b) the Applicable Rate Dollar Replacement Term Loans or Euro Replacement Term Loans (or similar
interest rate spread applicable to such Dollar Replacement Term Loans or Euro Replacement Term
Loans, respectively) shall not be higher than the Applicable Rate for such Dollar Refinanced Term
Loans or Euro Refinanced Term Loans (or similar interest rate spread applicable to such Dollar
Refinanced Term Loans or Euro Refinanced Term Loans, respectively) immediately prior to such
refinancing, (c) the Weighted Average Life to Maturity of such Dollar Replacement Term Loans or
Euro Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such
Dollar Refinanced Term Loans or Euro Refinanced Term Loans, respectively, at the time of such
refinancing (except to the extent of nominal amortization for periods where amortization has been
eliminated as a result of prepayment of the applicable Term Loans) and (d) all other terms
applicable to such Dollar Replacement Term Loans or Euro Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such Dollar Replacement Term
Loans or Euro Replacement Term Loans than, those applicable to such Dollar Refinanced Term Loans or
Euro Refinanced Term Loans, respectively, except to the extent necessary to provide for covenants
and other terms applicable to any period after the latest final maturity of the Term Loans in
effect immediately prior to such refinancing.



          Notwithstanding anything to the contrary contained in Section 10.01, guarantees, collateral
security documents and related documents executed by Subsidiaries in connection with this Agreement
may be in a form reasonably determined by the Administrative Agent and may be, together with this
Agreement, amended and waived with the consent of the Administrative Agent at the request of the
Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is
delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cure
ambiguities or defects or (iii) to cause such guarantee, collateral security document or other
document to be consistent with this Agreement and the other Loan Documents.



          SECTION 10.02. Notices and Other Communications; Facsimile Copies.



          (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Loan Document shall be in writing
(including by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or electronic mail



173









 




address, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:





          (i) if to the Borrower, the Administrative Agent, an L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such party in
a notice to the other parties; and




          (ii) if to any other Lender, to the address, facsimile number, electronic mail
address or telephone number specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the Administrative Agent, the L/C
Issuers and the Swing Line Lender.


All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail
(which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided
that notices and other communications to the Administrative Agent, the L/C Issuers and the Swing
Line Lender pursuant to Article 2 shall not be effective until actually received by such Person.
In no event shall a voice mail message be effective as a notice, communication or confirmation
hereunder.




          (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted
and/or signed by facsimile. The effectiveness of any such documents and signatures shall, subject
to applicable Law, have the same force and effect as manually signed originals and shall be binding
on all Loan Parties, the Agents and the Lenders.



          (c) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross
negligence or willful misconduct. All telephonic notices to the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



          SECTION 10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in



174









 




exercising, any right, remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided, and provided under each other Loan Document, are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by Law.




          SECTION 10.04. Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent, the Syndication Agent, the Co-Documentation Agents and the
Arrangers for all reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents,
and any amendment, waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including all Attorney Costs of
local and foreign counsel, and (b) to pay or reimburse the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents, the Arrangers and each Lender for all out-of-pocket costs and
expenses incurred in connection with the enforcement of any rights or remedies under this Agreement
or the other Loan Documents (including all such costs and expenses incurred during any legal
proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs
of counsel to the Administrative Agent). The foregoing costs and expenses shall include all
reasonable search, filing, recording and title insurance charges and fees and taxes related
thereto, and other (reasonable, in the case of Section 10.04(a)) out-of-pocket expenses incurred by
any Agent. The agreements in this Section 10.04 shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall
be paid within ten (10) Business Days of receipt by the Borrower of an invoice relating thereto
setting forth such expenses in reasonable detail. If any Loan Party fails to pay when due any
costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount
may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.



          SECTION 10.05. Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Lender, each L/C Issuer and their respective Affiliates, directors,
officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact
(collectively, the “Indemnitees”) from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in
connection with (a) the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the



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proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (c) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or operated by the
Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way
to the Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether
any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”),
in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of
the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful
misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee. No Indemnitee shall be liable for any damages arising from
the use by others of any information or other materials obtained through IntraLinks or other
similar information transmission systems in connection with this Agreement, nor shall any
Indemnitee or any Loan Party have any liability for any special, punitive, indirect or
consequential damages relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the Second Amendment and
Restatement Effective Date). In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its directors,
stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is
otherwise a party thereto and whether or not any of the transactions contemplated hereunder or
under any of the other Loan Documents is consummated. All amounts due under this Section 10.05
shall be paid within ten (10) Business Days after demand therefor; provided, however, that such
Indemnitee shall promptly refund such amount to the extent that there is a final judicial or
arbitral determination that such Indemnitee was not entitled to indemnification or contribution
rights with respect to such payment pursuant to the express terms of this Section 10.05. The
agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.




          SECTION 10.06. Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law
or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not



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been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by
any Agent, plus interest thereon from the date of such demand to the date such payment is made at a
rate per annum equal to the applicable Overnight Rate from time to time in effect.




          SECTION 10.07. Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that neither
Holdings nor the Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee, (ii) by way
of participation in accordance with the provisions of Section 10.07(e), (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC
in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in Section
10.07(e) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment (which, in the case of an assignment
of any portion of (1) a Synthetic L/C Commitment of any Class, must include, in the case of a
Non-Extended Synthetic L/C Commitment, an assignment of an equal portion of such Lender’s interest
in its Credit-Linked Deposit, the Non-Extended Synthetic L/C Loans and participations in Synthetic
L/C Obligations on account of its Synthetic L/C Commitment of such Class, and, in the case of an
Extended Synthetic L/C Commitment, an assignment of an equal portion of such Lender’s interest in
its Tranche S Term Loans and participations in Synthetic L/C Obligations on account of its
Synthetic L/C Commitment of such Class, and (2) in the case of an assignment of any Tranche S Term
Loan, must include an equal portion of such Lender’s interest in its Extended Synthetic L/C
Commitment and participations in Synthetic L/C Obligations on account of such Commitment) and the
Loans (including for purposes of this Section 10.07(b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:




          (A) the Borrower; provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing,
any Assignee;



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          (B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan or a
portion of any Synthetic L/C Facility to another Lender, an Affiliate of a Lender
or an Approved Fund;




          (C) in the case of any assignment under any Revolving Credit Facility, each
Revolving L/C Issuer that is a Principal L/C Issuer at the time of such
assignment; provided that no consent of the Principal L/C Issuers shall be required
for any assignment to an Agent or an Affiliate of an Agent; and




          (D) in the case of any assignment of any of the Dollar Revolving Credit
Facility, the Swing Line Lender.




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




          (A) except in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment
or Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 (in the case of the
Revolving Credit Facilities) or $1,000,000 (in the case of a Term Loan or a portion
of any Synthetic L/C Facility) unless each of the Borrower and the Administrative
Agent otherwise consents, provided that (1) no such consent of the Borrower shall
be required if an Event of Default under Section 8.01(a), (f) or (g) has occurred
and is continuing and (2) such amounts shall be aggregated in respect of each
Lender and its Affiliates or Approved Funds, if any;




          (B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; provided that only one such fee shall be payable in the
event of simultaneous assignments from any Lender or its Approved Funds to one or
more other Approved Funds of such Lender; and




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



          This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis.



          (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Section 10.07(d), from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this




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Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, and the surrender by the assigning Lender of its Note, the
Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does not comply with
this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 10.07(e).




          (d) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts (and related interest amounts) of the Loans,
Credit-Linked Deposits, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and
amounts due under Section 2.03, owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and
the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower, any Agent and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.



          (e) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve
any amendment, modification or waiver of any provision of this Agreement or the other Loan
Documents; provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that directly affects such Participant. Subject to
Section 10.07(f), the Borrower agrees that each Participant shall be entitled to the benefits of



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Sections 3.01 (subject to the requirements of Section 10.15), 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(c).
To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits
of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to
Section 2.13 as though it were a Lender.




          (f) A Participant shall not be entitled to receive any greater payment under Section 3.01,
3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent.



          (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



          (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to
provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this Agreement (including its obligations
under Section 3.01, 3.04 or 3.05), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or other modification of
any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained
herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the
Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.



          (i) Notwithstanding anything to the contrary contained herein, (1) any Lender may in
accordance with applicable Law create a security interest in all or any portion of the Loans owing
to it and the Note, if any, held by it and (2) any Lender that is



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a Fund may create a security interest in all or any portion of the Loans owing to it and the
Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by
such Fund as security for such obligations or securities; provided that unless and until such
trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07,
(i) no such pledge shall release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.




          (j) Notwithstanding anything to the contrary contained herein, any L/C Issuer or the Swing
Line Lender may, upon thirty (30) days’ notice to the Borrower and the Lenders, resign as an L/C
Issuer or the Swing Line Lender, respectively; provided that on or prior to the expiration of such
30-day period with respect to such resignation, the relevant L/C Issuer or the Swing Line Lender
shall have identified, in consultation with the Borrower, a successor L/C Issuer or Swing Line
Lender willing to accept its appointment as successor L/C Issuer or Swing Line Lender, as
applicable. In the event of any such resignation of an L/C Issuer or the Swing Line Lender, the
Borrower shall be entitled to appoint from among the Lenders willing to accept such appointment a
successor L/C Issuer or Swing Line Lender hereunder; provided that no failure by the Borrower to
appoint any such successor shall affect the resignation of the relevant L/C Issuer or the Swing
Line Lender, as the case may be. If an L/C Issuer resigns as an L/C Issuer, it shall retain all
the rights and obligations of an L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If the Swing Line Lender
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).



          (k) In the case of any assignment pursuant to paragraph (b) above by a Non-Extended Synthetic
L/C Lender, the Credit-Linked Deposit of the assignor Non-Extended Synthetic L/C Lender shall not
be released, but shall instead be purchased by the relevant assignee and continue to be held for
application (to the extent not already applied) in accordance with this Agreement to satisfy such
assignee’s obligations in respect of the Non-Extended Synthetic L/C Exposure.



          SECTION 10.08. Confidentiality. Each of the Agents and the Lenders agrees to maintain
the confidentiality of the Information, except that Information may be disclosed (a) to its
Affiliates and its and its Affiliates’ directors, officers, employees, trustees, investment
advisors and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential); (b) to the extent requested
by any Governmental Authority; (c) to the extent required by applicable Laws or regulations or by
any subpoena or similar



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legal process; (d) to any other party to this Agreement; (e) subject to an agreement
containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be
reasonably acceptable to the Borrower), to any pledgee referred to in Section 10.07(g),
counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement; (f)
with the written consent of the Borrower; (g) to the extent such Information becomes publicly
available other than as a result of a breach of this Section 10.08; (h) to any Governmental
Authority or examiner (including the National Association of Insurance Commissioners or any other
similar organization) regulating any Lender; (i) to any rating agency when required by it (it being
understood that, prior to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Information relating to the Loan Parties received by it from such Lender);
or (j) in connection with the exercise of any remedies hereunder or under any other Loan Document
or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder. In addition, the Agents and the Lenders may
disclose the existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service providers to the Agents
and the Lenders in connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section
10.08, “Information” means all information received from any Loan Party relating to any Loan Party
or its business, other than any such information that is publicly available to any Agent or any
Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section
10.08; provided that, in the case of information received from a Loan Party after the Original
Closing Date, such information is clearly identified at the time of delivery as confidential or
(ii) is delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.




          SECTION 10.09. Setoff. In addition to any rights and remedies of the Lenders provided
by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its
Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time,
without prior notice to the Borrower or any other Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) 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, and other Indebtedness at any time owing
by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or
for the credit or the account of the respective Loan Parties and their Subsidiaries against any and
all Obligations owing to such Lender and its Affiliates or such L/C Issuer and its Affiliates
hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or
not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured or denominated in a
currency different from that of the applicable deposit or Indebtedness. Each Lender and L/C Issuer
agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender or L/C Issuer, as the case may be; provided that the failure to
give such notice shall not affect the validity of such setoff and application. The rights of the
Administrative Agent, each Lender and each L/C Issuer



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under this Section 10.09 are in addition to other rights and remedies (including other rights
of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.




          SECTION 10.10. Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the
“Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted
for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the
extent permitted by applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
of interest throughout the contemplated term of the Obligations hereunder.



          SECTION 10.11. Counterparts. This Agreement and each other Loan Document may be
executed in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery by telecopier of an executed
counterpart of a signature page to this Agreement and each other Loan Document shall be effective
as delivery of an original executed counterpart of this Agreement and such other Loan Document.
The Agents may also require that any such documents and signatures delivered by telecopier be
confirmed by a manually signed original thereof; provided that the failure to request or deliver
the same shall not limit the effectiveness of any document or signature delivered by telecopier.



          SECTION 10.12. Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event
of any conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Agents, the L/C Issuers or the Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



          SECTION 10.13. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by each
Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their
behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any
Default at the time of any Credit Extension, and shall continue in full force and effect as



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long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.




          SECTION 10.14. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.



          SECTION 10.15. Tax Forms.



          (a) (i) Each Lender and Agent that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (each, a “Foreign Lender”) shall, to the extent it may lawfully do
so, deliver to the Borrower and the Administrative Agent, on or prior to the date which is ten (10)
Business Days after the Second Amendment and Restatement Effective Date (or, in the case of any
Lender becoming a Lender hereunder after the Second Amendment and Restatement Effective Date, upon
accepting an assignment of an interest herein), two duly signed, properly completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it
to an exemption from, or reduction of, United States withholding tax on all payments to be made to
such Foreign Lender by the Borrower or any other Loan Party pursuant to this Agreement or any other
Loan Document) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to
such Foreign Lender by the Borrower or any other Loan Party pursuant to this Agreement or any other
Loan Document) or such other evidence reasonably satisfactory to the Borrower and the
Administrative Agent that such Foreign Lender is entitled to an exemption from, or reduction of,
United States federal withholding tax, including any exemption pursuant to Section 871(h) or 881(c)
of the Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c) of
the Code, a certificate that establishes in writing to the Borrower and the Administrative Agent
that such Foreign Lender is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Code, (ii) a
10-percent stockholder within the meaning of Section 871(h)(3)(B) of the Code, or (iii) a
controlled foreign corporation related to the Borrower with the meaning of Section 864(d) of the
Code. Thereafter and from time to time, each such Foreign Lender shall, to the extent it may
lawfully do so, (A) promptly submit to the Borrower and the Administrative Agent such additional
duly completed and signed copies of one or more of such forms or certificates (or such successor
forms or certificates as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States Laws and regulations to
avoid, or such evidence as is reasonably satisfactory to the Borrower and the Administrative Agent
of any available exemption from, or reduction of, United States federal withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower or other Loan Party
pursuant to this Agreement, or any other Loan Document, in each case, (1) on or before the date
that any such form, certificate or other evidence expires or becomes obsolete, (2) after the
occurrence of a change in the Lender’s circumstances requiring a change in the most recent form,
certificate or evidence previously delivered by it to the Borrower and the Administrative



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Agent and (3) from time to time thereafter if reasonably requested by the Borrower or the
Administrative Agent, and (B) promptly notify the Borrower and the Administrative Agent of any
change in the Lender’s circumstances which would modify or render invalid any claimed exemption or
reduction.





          (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Foreign Lender
under any of the Loan Documents (for example, in the case of a typical participation by
such Foreign Lender), shall, to the extent it may lawfully do so, deliver to the Borrower
and the Administrative Agent on the date when such Foreign Lender ceases to act for its own
account with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Borrower or the Administrative Agent
(in either case, in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such Foreign Lender
as set forth above, to establish the portion of any such sums paid or payable with respect
to which such Foreign Lender acts for its own account that is not subject to United States
federal withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Foreign Lender chooses to
transmit with such form, and any other certificate or statement of exemption required under
the Code, to establish that such Foreign Lender is not acting for its own account with
respect to a portion of any such sums payable to such Foreign Lender.




          (iii) The Borrower shall not be required to pay any additional amount or any indemnity
payment under Section 3.01 to (A) any Foreign Lender if such Foreign Lender shall have
failed to satisfy the foregoing provisions of this Section 10.15(a), or (B) any U.S. Lender
if such U.S. Lender shall have failed to satisfy the provisions of Section 10.15(b);
provided that (i) if such Lender shall have satisfied the requirement of this Section
10.15(a) or Section 10.15(b), as applicable, on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 10.15(a) or Section 10.15(b) shall relieve the Borrower
of its obligation to pay any amounts pursuant to Section 3.01 in the event that, as a
result of any change in any applicable Law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or application thereof, such
Lender is no longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the account of
which such Lender receives any sums payable under any of the Loan Documents is not subject
to withholding or is subject to withholding at a reduced rate and (ii) nothing in this
Section 10.15(a) shall relieve the Borrower of its obligation to pay any amounts pursuant
to Section 3.01 in the event that the requirements of 10.15(a)(ii) have not been satisfied
if the Borrower is entitled, under applicable Law, to rely on any applicable forms and
statements required to be provided under this Section 10.15 by the Foreign Lender that does
not act or has ceased to act for its own account under any of the Loan Documents, including
in the case of a typical participation.



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          (iv) The Administrative Agent may deduct and withhold any taxes required by any Laws
to be deducted and withheld from any payment under any of the Loan Documents.



          (b) Each Lender and Agent that is a “United States person” within the meaning of Section
7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Administrative Agent and the
Borrower two duly signed, properly completed copies of IRS Form W-9 on or prior to the Second
Amendment and Restatement Effective Date (or, in the case of any Lender becoming a Lender hereunder
after the Second Amendment and Restatement Effective Date, upon accepting an assignment of an
interest herein), certifying that such U.S. Lender is entitled to an exemption from United States
backup withholding tax, or any successor form. If such U.S. Lender fails to deliver such forms,
then the Administrative Agent may withhold from any payment to such U.S. Lender an amount
equivalent to the applicable backup withholding tax imposed by the Code.



          SECTION 10.16. GOVERNING LAW.



          (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



          (b) ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE BORROWER, HOLDINGS, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER,
HOLDINGS, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO.



          SECTION 10.17. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW



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EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.




          SECTION 10.18. Binding Effect. This Agreement shall become effective as provided in
the Third Amendment and Restatement Agreement, and thereafter shall be binding upon and inure to
the benefit of the Borrower, each Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders except as permitted by Section
7.04.



          SECTION 10.19. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of
the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable Law).



          SECTION 10.20. Lender Action. Each Lender agrees that it shall not take or institute
any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party
or any other obligor under any of the Loan Documents or the Secured Hedge Agreements (including the
exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other
rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial
procedures, with respect to any Collateral or any other property of any such Loan Party, without
the prior written consent of the Administrative Agent. The provision of this Section 10.20 are for
the sole



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benefit of the Lenders and shall not afford any right to, or constitute a defense available
to, any Loan Party.




          SECTION 10.21. USA PATRIOT Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Act.



          SECTION 10.22. Agent for Service of Process. The Borrower agrees that promptly
following request by the Administrative Agent it shall cause each material Foreign Subsidiary for
whose account a Letter of Credit is issued to appoint and maintain an agent reasonably satisfactory
to the Administrative Agent to receive service of process in New York City on behalf of such
material Foreign Subsidiary.



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