Exhibit
10.1


 




 





CREDIT AGREEMENT


 


among


 


UNITED ONLINE,
INC.,


 


VARIOUS LENDERS,


 


and


 


DEUTSCHE BANK
TRUST COMPANY AMERICAS,


as ADMINISTRATIVE
AGENT


 


 










 


Dated as of
December 3, 2004


 










 


 


DEUTSCHE BANK
SECURITIES INC.,

as LEAD ARRANGER and BOOK MANAGER




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  1.

  	
  Definitions
  and Accounting Terms.

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.01.

  	
  Defined Terms

  	
  1

  
	
   

  	
  1.02.

  	
  Other Definitional
  Provisions

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of Credit

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.01.

  	
  The
  Commitments

  	
  32

  
	
   

  	
  2.02.

  	
  Minimum Amount of Each
  Borrowing

  	
  32

  
	
   

  	
  2.03.

  	
  Notice of Borrowing

  	
  33

  
	
   

  	
  2.04.

  	
  Disbursement of Funds

  	
  33

  
	
   

  	
  2.05.

  	
  Notes

  	
  34

  
	
   

  	
  2.06.

  	
  Conversions

  	
  35

  
	
   

  	
  2.07.

  	
  Pro Rata Borrowings

  	
  35

  
	
   

  	
  2.08.

  	
  Interest

  	
  35

  
	
   

  	
  2.09.

  	
  Interest Periods

  	
  36

  
	
   

  	
  2.10.

  	
  Increased
  Costs, Illegality, etc.

  	
  37

  
	
   

  	
  2.11.

  	
  Compensation

  	
  39

  
	
   

  	
  2.12.

  	
  Change of Lending Office

  	
  40

  
	
   

  	
  2.13.

  	
  Replacement of Lenders

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  [Reserved]

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Fees; Reductions of Commitment.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.01.

  	
  Fees

  	
  41

  
	
   

  	
  4.02.

  	
  Voluntary
  Termination of Commitments

  	
  41

  
	
   

  	
  4.03.

  	
  Mandatory
  Reduction of Commitments

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Prepayments; Payments; Taxes

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.01.

  	
  Voluntary
  Prepayments

  	
  41

  
	
   

  	
  5.02.

  	
  Mandatory
  Repayments, etc.

  	
  42

  
	
   

  	
  5.03.

  	
  Method and
  Place of Payment

  	
  47

  
	
   

  	
  5.04.

  	
  Net Payments

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to the Occurrence of the
  Effective Date

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.01.

  	
  Execution
  Date

  	
  49

  
	
   

  	
  6.02.

  	
  Commencement
  of Tender Offer; Existing Indebtedness

  	
  49

  
	
   

  	
  6.03.

  	
  Adverse
  Change, Approvals

  	
  50

  
	
   

  	
  6.04.

  	
  Litigation

  	
  50

  
	
   

  	
  6.05.

  	
  Financial
  Statements; Pro Forma Financial Statements; Projections

  	
  51

  
	
   

  	
  6.06.

  	
  Fees, etc.

  	
  51

  
	
   

  	
  6.07.

  	
  No Default;
  Representations and Warranties

  	
  51

  



 


i





















 


	
  SECTION 7.

  	
  Conditions Precedent to Incurrence of Term
  Loans on the Borrowing Date

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.01.

  	
  Effective
  Date; Notes

  	
  51

  
	
   

  	
  7.02.

  	
  Officer’s
  Certificate

  	
  51

  
	
   

  	
  7.03.

  	
  Opinions of
  Counsel

  	
  52

  
	
   

  	
  7.04.

  	
  Company
  Documents; Proceedings; etc.

  	
  52

  
	
   

  	
  7.05.

  	
  Consummation of the
  Tender Offer and Share Repurchase; Cash on Hand

  	
  52

  
	
   

  	
  7.06.

  	
  Adverse
  Change, Approvals

  	
  52

  
	
   

  	
  7.07.

  	
  Litigation

  	
  53

  
	
   

  	
  7.08.

  	
  Subsidiaries
  Guaranty

  	
  53

  
	
   

  	
  7.09.

  	
  Pledge
  Agreement

  	
  53

  
	
   

  	
  7.10.

  	
  Security
  Agreement

  	
  53

  
	
   

  	
  7.11.

  	
  Solvency
  Certificate; Insurance Certificates

  	
  54

  
	
   

  	
  7.12.

  	
  Shareholders’
  Agreements; Existing Indebtedness Agreements

  	
  54

  
	
   

  	
  7.13.

  	
  Fees, etc.

  	
  54

  
	
   

  	
  7.14.

  	
  No Default;
  Representations and Warranties

  	
  54

  
	
   

  	
  7.15.

  	
  Notice of
  Borrowing

  	
  55

  
	
   

  	
  7.16.

  	
  Credit Ratings

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations, Warranties and Agreements

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.01.

  	
  Company
  Status

  	
  55

  
	
   

  	
  8.02.

  	
  Power and
  Authority

  	
  56

  
	
   

  	
  8.03.

  	
  No Violation

  	
  56

  
	
   

  	
  8.04.

  	
  Approvals

  	
  56

  
	
   

  	
  8.05.

  	
  Financial
  Statements; Financial Condition; Undisclosed Liabilities; Projections

  	
  56

  
	
   

  	
  8.06.

  	
  Litigation

  	
  58

  
	
   

  	
  8.07.

  	
  True and Complete
  Disclosure

  	
  58

  
	
   

  	
  8.08.

  	
  Use of Proceeds;
  Margin Regulations

  	
  58

  
	
   

  	
  8.09.

  	
  Tax Returns and
  Payments

  	
  59

  
	
   

  	
  8.10.

  	
  Compliance
  with ERISA

  	
  59

  
	
   

  	
  8.11.

  	
  Security Documents

  	
  61

  
	
   

  	
  8.12.

  	
  Properties

  	
  61

  
	
   

  	
  8.13.

  	
  Capitalization

  	
  62

  
	
   

  	
  8.14.

  	
  Subsidiaries

  	
  62

  
	
   

  	
  8.15.

  	
  Compliance with Statutes, etc.

  	
  62

  
	
   

  	
  8.16.

  	
  Investment
  Company Act

  	
  62

  
	
   

  	
  8.17.

  	
  Public Utility
  Holdings Company Act

  	
  63

  
	
   

  	
  8.18.

  	
  Environmental
  Matters

  	
  63

  
	
   

  	
  8.19.

  	
  Employment
  and Labor Relations

  	
  63

  
	
   

  	
  8.20.

  	
  Intellectual
  Property, etc.

  	
  64

  
	
   

  	
  8.21.

  	
  Indebtedness

  	
  64

  
	
   

  	
  8.22.

  	
  Insurance

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative Covenants

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.01.

  	
  Information
  Covenants

  	
  64

  



 


ii





















 


	
   

  	
  9.02.

  	
  Books, Records and
  Inspections; Annual Meetings

  	
  67

  
	
   

  	
  9.03.

  	
  Maintenance
  of Property; Insurance

  	
  67

  
	
   

  	
  9.04.

  	
  Existence;
  Franchises

  	
  68

  
	
   

  	
  9.05.

  	
  Compliance
  with Statutes, etc.

  	
  68

  
	
   

  	
  9.06.

  	
  Compliance
  with Environmental Laws

  	
  68

  
	
   

  	
  9.07.

  	
  ERISA

  	
  69

  
	
   

  	
  9.08.

  	
  End of Fiscal Years;
  Fiscal Quarters

  	
  70

  
	
   

  	
  9.09.

  	
  Performance
  of Obligations

  	
  70

  
	
   

  	
  9.10.

  	
  Payment of
  Taxes

  	
  71

  
	
   

  	
  9.11.

  	
  Use of Proceeds

  	
  71

  
	
   

  	
  9.12.

  	
  Additional
  Security; Further Assurances; etc.

  	
  71

  
	
   

  	
  9.13.

  	
  Ownership
  of Subsidiaries; etc.

  	
  72

  
	
   

  	
  9.14.

  	
  Share Repurchase

  	
  73

  
	
   

  	
  9.15.

  	
  Interest
  Rate Protection

  	
  73

  
	
   

  	
  9.16.

  	
  Permitted
  Acquisitions

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Negative Covenants

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.01.

  	
  Liens

  	
  74

  
	
   

  	
  10.02.

  	
  Consolidation,
  Merger, Purchase or Sale of Assets, etc.

  	
  77

  
	
   

  	
  10.03.

  	
  Dividends

  	
  80

  
	
   

  	
  10.04.

  	
  Indebtedness

  	
  81

  
	
   

  	
  10.05.

  	
  Advances,
  Investments and Loans

  	
  84

  
	
   

  	
  10.06.

  	
  Transactions
  with Affiliates

  	
  88

  
	
   

  	
  10.07.

  	
  Capital
  Expenditures

  	
  89

  
	
   

  	
  10.08.

  	
  Fixed Charge
  Coverage Ratio

  	
  90

  
	
   

  	
  10.09.

  	
  Senior Leverage
  Ratio

  	
  91

  
	
   

  	
  10.10.

  	
  Total Leverage
  Ratio

  	
  91

  
	
   

  	
  10.11.

  	
  Limitations
  on Voluntary Payments of Indebtedness, Modifications of Documents,
  Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.

  	
  91

  
	
   

  	
  10.12.

  	
  Limitation
  on Certain Restrictions on Subsidiaries

  	
  92

  
	
   

  	
  10.13.

  	
  Limitation
  on Issuance of Equity Interests

  	
  93

  
	
   

  	
  10.14.

  	
  Business;
  etc.

  	
  94

  
	
   

  	
  10.15.

  	
  Limitation
  on Creation of Subsidiaries and Joint Ventures

  	
  94

  
	
   

  	
  10.16.

  	
  Cash on Balance
  Sheet

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Events of Default

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.01.

  	
  Payments

  	
  95

  
	
   

  	
  11.02.

  	
  Representations,
  etc.

  	
  95

  
	
   

  	
  11.03.

  	
  Covenants

  	
  95

  
	
   

  	
  11.04.

  	
  Default Under
  Other Agreements

  	
  95

  
	
   

  	
  11.05.

  	
  Bankruptcy,
  etc.

  	
  96

  
	
   

  	
  11.06.

  	
  ERISA

  	
  96

  
	
   

  	
  11.07.

  	
  Security
  Documents

  	
  97

  
	
   

  	
  11.08.

  	
  Subsidiaries
  Guaranty

  	
  97

  
	
   

  	
  11.09.

  	
  Judgments

  	
  97

  



 


iii





















 


	
   

  	
  11.10.

  	
  Change of
  Control

  	
  97

  
	
   

  	
  11.11.

  	
  Subordination

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  The Administrative Agent

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.01.

  	
  Appointment

  	
  98

  
	
   

  	
  12.02.

  	
  Nature of
  Duties

  	
  99

  
	
   

  	
  12.03.

  	
  Lack of Reliance on
  the Administrative Agent

  	
  99

  
	
   

  	
  12.04.

  	
  Certain
  Rights of the Administrative Agent

  	
  99

  
	
   

  	
  12.05.

  	
  Reliance

  	
  100

  
	
   

  	
  12.06.

  	
  Indemnification

  	
  100

  
	
   

  	
  12.07.

  	
  The Administrative
  Agent in its Individual Capacity

  	
  100

  
	
   

  	
  12.08.

  	
  Holders

  	
  100

  
	
   

  	
  12.09.

  	
  Resignation
  by the Administrative Agent

  	
  101

  
	
   

  	
  12.10.

  	
  Collateral
  Matters

  	
  101

  
	
   

  	
  12.11.

  	
  Delivery of
  Information

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  Miscellaneous

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.01.

  	
  Payment of Expenses,
  etc.

  	
  102

  
	
   

  	
  13.02.

  	
  Right of Setoff

  	
  104

  
	
   

  	
  13.03.

  	
  Notices

  	
  104

  
	
   

  	
  13.04.

  	
  Benefit of
  Agreement; Assignments; Participations

  	
  104

  
	
   

  	
  13.05.

  	
  No Waiver; Remedies
  Cumulative

  	
  106

  
	
   

  	
  13.06.

  	
  Payments
  Pro Rata

  	
  106

  
	
   

  	
  13.07.

  	
  Calculations;
  Computations

  	
  107

  
	
   

  	
  13.08.

  	
  GOVERNING
  LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

  	
  107

  
	
   

  	
  13.09.

  	
  Counterparts

  	
  108

  
	
   

  	
  13.10.

  	
  Execution

  	
  108

  
	
   

  	
  13.11.

  	
  Headings
  Descriptive

  	
  109

  
	
   

  	
  13.12.

  	
  Amendment
  or Waiver; etc.

  	
  109

  
	
   

  	
  13.13.

  	
  Survival

  	
  110

  
	
   

  	
  13.14.

  	
  Domicile of
  Term Loans

  	
  110

  
	
   

  	
  13.15.

  	
  Register

  	
  110

  
	
   

  	
  13.16.

  	
  Confidentiality

  	
  111

  
	
   

  	
  13.17.

  	
  Special Provisions
  Regarding Pledges of Equity Interests in, and Promissory Notes Owed by,
  Persons Not Organized in the United States

  	
  111

  
	
   

  	
  13.18.

  	
  Limitation
  on Additional Amounts, etc.

  	
  112

  
	
   

  	
  13.19.

  	
  Post-Closing Actions

  	
  113

  



 


iv





















 


	
  SCHEDULE I

  	
  Commitments

  	
   

  
	
  SCHEDULE II

  	
  Lender Addresses

  	
   

  
	
  SCHEDULE III

  	
  Real Property

  	
   

  
	
  SCHEDULE IV

  	
  Plans

  	
   

  
	
  SCHEDULE V

  	
  Existing Indebtedness

  	
   

  
	
  SCHEDULE VI

  	
  Insurance

  	
   

  
	
  SCHEDULE VII

  	
  Existing Liens

  	
   

  
	
  SCHEDULE VIII

  	
  Existing Investments

  	
   

  
	
  SCHEDULE IX

  	
  Subsidiaries

  	
   

  
	
  SCHEDULE X

  	
  Restructuring Charges

  	
   

  
	
  SCHEDULE XI

  	
  Capitalization

  	
   

  
	
  SCHEDULE XII

  	
  Existing Letters of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE XIII

  	
  Tax Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
  Form of Notice of Borrowing

  	
   

  
	
  EXHIBIT A-2

  	
  Form of Notice of Conversion/Continuation

  	
   

  
	
  EXHIBIT B

  	
  Form of Note

  	
   

  
	
  EXHIBIT C

  	
  Form of Section 5.04(b)(ii) Certificate

  	
   

  
	
  EXHIBIT D

  	
  [Reserved]

  	
   

  
	
  EXHIBIT E

  	
  Form of Officers’ Certificate

  	
   

  
	
  EXHIBIT F

  	
  Form of Subsidiaries Guaranty

  	
   

  
	
  EXHIBIT G

  	
  Form of Pledge Agreement

  	
   

  
	
  EXHIBIT H

  	
  Form of Security Agreement

  	
   

  
	
  EXHIBIT I

  	
  Form of Solvency Certificate

  	
   

  
	
  EXHIBIT J

  	
  [Reserved]

  	
   

  
	
  EXHIBIT K

  	
  Form of Assignment and Assumption Agreement

  	
   

  
	
  EXHIBIT L

  	
  Form of Intercompany Note

  	
   

  
	
  EXHIBIT M

  	
  Form of Shareholder Subordinated Note

  	
   

  



 


v





















 


CREDIT AGREEMENT, dated as of December 3, 2004, among
UNITED ONLINE, INC., a Delaware corporation (the “Borrower”), the
Lenders party hereto from time to time, DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, and DEUTSCHE BANK SECURITIES INC., as Lead
Arranger.  All capitalized terms used
herein and defined in Section 1 are used herein as therein defined.


 


W I T N E S S E T H:


 


WHEREAS, subject to and upon the terms and conditions
set forth herein, the Lenders are willing to make available to the Borrower the
credit facility provided for herein;


 


NOW, THEREFORE, IT IS AGREED:


 


SECTION
1.           Definitions and
Accounting Terms.


 


1.01.        Defined Terms. 
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):


 


“Accounting Change” refers to a change in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC
or changes in application of principles required or preferred by the Borrower’s
independent auditors.


 


“Acquired EBITDA” shall mean, for any Acquired
Entity or Business for any period, the Consolidated EBITDA as determined for
such Acquired Entity or Business on a basis substantially the same (with
necessary reference changes) as provided in the definition of Consolidated
EBITDA contained herein, except that (i) all references therein and in the
component definitions used in determining Consolidated EBITDA to “the Borrower
and its Subsidiaries” shall be deemed to be references to the respective
Acquired Entity or Business and (ii) the adjustments contained in clauses
(I)(vi) and (vii) of the first sentence, and the adjustments contained in the
last sentence, of the definition of Consolidated EBITDA shall not be made.


 


“Acquired Entity or Business” shall mean either
(x) the assets constituting a business, division or product line of any Person
not already a Subsidiary of the Borrower or (y) 100% of the Equity Interests of
any such Person, which Person shall, as a result of such acquisition, become a
Wholly-Owned Subsidiary of the Borrower (or shall be merged with and into the
Borrower or a Wholly-Owned Subsidiary of the Borrower, with the Borrower or
such Wholly-Owned Subsidiary of the Borrower, as the case may be, being the
surviving Person).


 


“Additional Mortgage Documents” shall have the
meaning provided in Section 9.12.


 


“Adjusted Consolidated
Net Income” shall mean, for any period, Consolidated Net Income for such
period plus the sum of the amount of all net non-cash charges (including,
without limitation, depreciation, amortization, deferred tax expense and
non-cash interest


 





















 


expense) and net non-cash
losses which were included in arriving at Consolidated Net Income for such
period, less the amount of all net non-cash gains and non-cash credits
which were included in arriving at Consolidated Net Income for such period.


 


“Adjusted Consolidated
Working Capital” shall mean, at any time, Consolidated Current Assets (but
excluding therefrom all cash and Cash Equivalents) less Consolidated Current
Liabilities at such time.


 


“Administrative Agent” shall mean Deutsche Bank
Trust Company Americas, in its capacity as Administrative Agent for the Lenders
hereunder and under the other Credit Documents, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.


 


“Affiliate” shall mean, with respect to any
Person, any other Person directly or indirectly controlling (including, but not
limited to, all directors and executive officers of such Person), controlled
by, or under direct or indirect common control with, such Person.  A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power (i) to vote
10% or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors (or equivalent governing body) of such
Person or (ii) to direct or cause the direction of the management and policies
of such other Person, whether through the ownership of voting securities, by
contract or otherwise; provided, however, that neither the
Administrative Agent nor any Lender (nor any Affiliate thereof) shall be
considered an Affiliate of the Borrower or any Subsidiary thereof.


 


“Aggregate Consideration” shall mean, with
respect to any Permitted Acquisition, the sum (without duplication and net of
cash and Cash Equivalents held by the respective Acquired Entity or Business at
the time of such Permitted Acquisition) of (i) the fair market value of the
Borrower Common Stock (based on the average closing trading price of the
Borrower Common Stock for the 15 trading days immediately prior to the date of
such Permitted Acquisition on the stock exchange on which Borrower Common Stock
is listed or, if Borrower Common Stock is not so listed, the good faith
determination of the senior management of the Borrower) issued as consideration
in connection with such Permitted Acquisition (excluding Borrower Common Stock
that may be required to be issued as earn-out consideration upon the
achievement of certain future performance goals of the respective Acquired
Entity or Business), (ii) the aggregate amount of all cash paid (or to be paid)
by the Borrower or any of its Subsidiaries as consideration for such Permitted
Acquisition and all contingent cash purchase price, earn-out, non-compete and
other similar obligations of the Borrower and its Subsidiaries incurred and
reasonably expected to be incurred in cash in connection therewith (as
determined in good faith by the Borrower), (iii) the aggregate principal amount
of all Indebtedness assumed, incurred, refinanced and/or issued in connection
with such Permitted Acquisition to the extent permitted by Section 10.04, (iv)
the aggregate liquidation preference of all Qualified Preferred Stock issued as
consideration in connection with such Permitted Acquisition (excluding Qualified
Preferred Stock that may be required to be issued as earn-out consideration
upon the achievement of certain future performance goals of the respective
Acquired Entity or Business), and (v) the Fair Market Value of all other
consideration payable in connection with such Permitted Acquisition.


 


2





















 


“Agreement” shall mean this Credit Agreement,
as modified, supplemented, amended, restated (including any amendment and
restatement hereof), extended or renewed from time to time.


 


“Applicable Annual Permitted Acquisition Basket
Amount” shall mean, at any time during any fiscal year of the Borrower, an
amount equal to the sum of (x) $20,000,000 plus (y) to the extent the
consideration utilized (or then being utilized) to finance one or more
Permitted Acquisitions consummated (or then being consummated) in such fiscal
year includes (i) cash on hand (except to the extent resulting from the sale or
issuance of Equity Interests or Indebtedness), (ii) Borrower Common Stock,
(iii) Qualified Preferred Stock and/or (iv) Net Cash Proceeds from any sale or
issuance of Equity Interests of the Borrower (other than Permitted Disqualified
Preferred Stock) consummated during such fiscal year which (I) are not required
to be applied as a mandatory repayment of Term Loans pursuant to Section
5.02(c) and (II) are certified in writing by an Authorized Officer of the
Borrower to the Administrative Agent as “Net Cash Proceeds Applied To The
Applicable Annual Permitted Acquisition Basket Amount” on the date of
consummation of the respective Permitted Acquisition, the lesser of (A)
$15,000,000 and (B) the sum (without duplication) of (w) aggregate amount of
such cash on hand, (x) the fair market value of such Borrower Common Stock
(based on the average closing trading price of the Borrower Common Stock for
the 15 trading days immediately prior to the date of such Permitted Acquisition
on the stock exchange on which Borrower Common Stock is listed or, if Borrower
Common Stock is not so listed, the good faith determination of the senior
management of the Borrower), (y) the Fair Market Value of such Qualified
Preferred Stock and (z) such Net Cash Proceeds, in any such case so utilized
(or then being utilized) to finance the respective Permitted Acquisition or
Permitted Acquisitions; provided that if (i) calculations are made by
the Borrower demonstrating compliance with a Senior Leverage Ratio of less than
1.0:1.0 at such time, determined on a Pro  Forma Basis (after
giving effect to the respective Permitted Acquisition and the incurrence and/or
assumption of Indebtedness in connection therewith as if same had been
consummated on the first day of the respective Calculation Period) and (ii) the
Borrower shall have furnished to the Administrative Agent a certificate from an
Authorized Officer of the Borrower certifying, to the best of his or her
knowledge, as to compliance with the requirements of preceding sub-clause (i)
(and containing the calculations required thereby), the Applicable Annual Permitted
Acquisition Basket Amount at such time shall instead be $50,000,000.


 


“Applicable Margin” shall mean, at any time, a
percentage per annum equal to (i) in the case of Term Loans maintained as Base
Rate Loans, 2.50%, and (ii) in the case of Term Loans maintained as Eurodollar
Loans, 3.50%.


 


“Applicable Prepayment
Percentage” shall mean, at any time, (i) in the case of any sale or
issuance of common Equity Interests or Qualified Preferred Stock of the
Borrower or any capital contribution to the Borrower, 50%; provided
that, so long as no Default or Event of Default has occurred and is continuing,
if the Senior Leverage Ratio is less than 1.0:1.0 (as set forth in the officer’s
certificate delivered pursuant to Section 9.01(f) for the fiscal quarter or
fiscal year, as the case may be, of the Borrower then last ended for which
financial statements are available), the Applicable Prepayment Percentage shall
instead be 0% and (ii) in the case of (x) any issuance of Preferred Equity by
the Borrower (other than Qualified Preferred Stock) or


 


3





















 


any of its Subsidiaries
or (y) any sale or issuance of common Equity Interests by, or any capital
contribution to, any Subsidiary of the Borrower, 100%.


 


“Asset Sale” shall
mean any sale, transfer or other disposition by the Borrower or any of its
Subsidiaries to any Person (including by way of redemption by such Person)
other than to the Borrower or a Wholly-Owned Subsidiary of the Borrower of any
asset (including, without limitation, any capital stock or other securities of,
or Equity Interests in, another Person) but excluding (I) sales of assets
pursuant to Sections 10.02(ii), (vi), (vii), (viii), (x), (xii), (xiii), (xiv)
and (xv) and (II) any other sale, transfer or disposition (for such purpose,
treating any series of related sales, transfers or dispositions as a single
such transaction) that generates Net Sale Proceeds of less than $500,000.


 


“Assignment and
Assumption Agreement” shall mean an Assignment and Assumption Agreement
substantially in the form of Exhibit K (appropriately completed).


 


“Authorized Officer”
shall mean, with respect to (i) delivering Notices of Borrowing, Notices of
Conversion/Continuation, Letter of Credit Requests and similar notices, any
person or persons that has or have been authorized by the board of directors of
the Borrower to deliver such notices pursuant to this Agreement and that has or
have appropriate signature cards on file with the Administrative Agent; (ii)
delivering financial information and officer’s certificates pursuant to this
Agreement, the chief executive officer, the president, any vice president, the
chief financial officer, principal accounting officer, any treasurer or any
controller of the Borrower; and (iii) any other matter in connection with this
Agreement or any other Credit Document, any officer (or a person or persons so
designated by any two officers) of the Borrower.


 


“Available Basket
Amount” shall mean, on any date of determination, an amount equal to the
sum of (i) $10,000,000 plus (ii) the Excess Proceeds Amount at such time
minus (iii) the aggregate amount of Investments made (including for such
purpose the Fair Market Value of any assets contributed to any Joint Venture,
net of Indebtedness and, without duplication, Capitalized Lease Obligations
assigned to, and assumed by, the respective Joint Venture in connection
therewith) pursuant to Section 10.05(x) after the Effective Date, minus
(iv) the aggregate principal amount of Indebtedness or other obligations (whether
absolute, accrued, contingent or otherwise and whether or not due) of any Joint
Venture for which the Borrower or any of its Subsidiaries (other than the
respective Joint Venture) is liable (with the amount of any such other
obligations to be determined in good faith by senior management of the
Borrower), minus (v) all payments made by the Borrower or any of its
Subsidiaries (other than the respective Joint Venture) in respect of
Indebtedness or other obligations of the respective Joint Venture (including,
without limitation, payments in respect of obligations described in preceding
clause (iv)) after the Effective Date, minus (vi) the aggregate amount
of Investments made (including for such purpose the Fair Market Value of any
assets contributed to any Foreign Subsidiary, net of Indebtedness and, without
duplication, Capitalized Lease Obligations assigned to, and assumed by, the
respective Foreign Subsidiary in connection therewith) pursuant to Section
10.05(xv) after the Effective Date, plus (vii) the amount of any
increase to the Available Basket Amount made after the Effective Date in
accordance with the provisions of Sections 10.05(x) and (xv).  In connection with the foregoing, it is
understood that the acquisition of an Acquired Entity or Business which has
ownership interests in one or more Joint Ventures or Foreign


 


4





















 


Subsidiaries, pursuant to
a Permitted Acquisition effected in accordance with the relevant requirements
of this Agreement shall not be deemed to constitute an Investment pursuant to
Section 10.05(x) or (xv), as the case may be, and the Available Basket Amount
shall not be reduced as a result of the payment of consideration owing to
effect such Permitted Acquisition (although the Available Basket Amount would
be affected to the extent additional Investments are made in the respective
Joint Venture or Foreign Subsidiary pursuant to Section 10.05(x) or (xv), as
the case may be).


 


“Bankruptcy Code” shall have the meaning
provided in Section 11.05.


 


“Base Rate” shall mean, at any time, the higher
of (i) the Prime Lending Rate at such time and (ii) 1/2 of 1% in excess of the
overnight Federal Funds Rate at such time.


 


“Base Rate Loan” shall mean each Term Loan
designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.


 


“Borrower” shall have the meaning provided in
the first paragraph of this Agreement.


 


“Borrower Common Stock” shall have the meaning
provided in Section 8.13.


 


“Borrowing” shall mean the borrowing of one
Type of Term Loan from all the Lenders on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred pursuant
to Section 2.10(b) shall be considered part of the related Borrowing of
Eurodollar Loans.


 


“Borrowing Date” shall mean the date occurring
on or within 10 Business Days following the Effective Date on which Term Loans
are incurred.


 


“Business Day” shall mean (i) for all purposes
other than as covered by clause (ii) below, any day except Saturday, Sunday and
any day which shall be in New York, New York, a legal holiday or a
day on which banking institutions are authorized or required by law or other government
action to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) above and which is also
a day for trading by and between banks in U.S. dollar deposits in the interbank
Eurodollar market.


 


“Calculation Period” shall mean, with respect
to any event expressly required to be calculated on a Pro  Forma
Basis pursuant to the terms of this Agreement, the Test Period most recently
ended prior to the date of such event for which financial statements are
available.


 


“Capital Expenditures” shall mean, with respect
to any Person, all expenditures by such Person which should be capitalized in
accordance with GAAP and, without duplication, the amount of Capitalized Lease
Obligations incurred by such Person.


 


“Capitalized Lease Obligations” shall mean,
with respect to any Person, all rental obligations of such Person which, under
GAAP, are or will be required to be capitalized on the


 


5





















 


books of such Person, in
each case taken at the amount thereof accounted for as indebtedness in
accordance with such principles.


 


“Cash Equivalents” shall mean, as to any
Person, (i) securities issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than four years from the date of
acquisition, (ii) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within four years from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from
either S&P or Moody’s, (iii) Dollar denominated time deposits, eurodollar
time deposits, overnight bank deposits, certificates of deposit and bankers
acceptances of any Lender or any commercial bank having at the time of
acquisition, or which is the principal banking subsidiary of a bank holding
company having, a long-term unsecured debt rating of at least “A” or the
equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s
with maturities of not more than four years from the date of acquisition by
such Person, (iv) repurchase obligations with a term of not more than thirty
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iii)
above at the time of acquisition, (v) commercial paper issued by any Person
incorporated in the United States rated at the time of acquisition at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof
by Moody’s and in each case maturing not more than four years after the date of
acquisition by such Person, (vi) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (iii)
above at the time of acquisition, (vii) investments in money market funds whose
assets are primarily comprised of securities of the types described in clauses
(i) through (vi) above and (viii) in the case of any Foreign Subsidiary only,
(x) direct obligations of the sovereign nation (or any agency thereof) in which
such Foreign Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency thereof), (y) investments of the type and maturity (or if less, a
maturity of one year) described above in clauses (i) through (vii) above of
foreign obligors which investments or obligors have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies and (z)
investments of the type and maturity (or if less, a maturity of one year)
described above in clauses (i) through (vii) above of foreign obligors which
investments or obligors are not rated as provided in such clauses or in clause
(y) above but which are, in the reasonable judgment of the Borrower or its
Subsidiaries, comparable in investment quality to such investment and obligors.


 


“CERCLA” shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as the same
has been amended and may hereafter be amended from time to time, 42 U.S.C.
§ 9601 et  seq.


 


“Change in Law” shall have the meaning provided
in Section 11.06.


 


“Change of Control” shall mean (i) any Person
or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act,
as in effect on the Effective Date) shall have acquired beneficial ownership of
35% or more on a fully diluted basis of the voting and/or economic interest in
the Borrower’s capital stock, (ii) the Board of Directors of the Borrower


 


6





















 


shall cease to consist of
a majority of Continuing Directors or (iii) a “change of control” or similar
event shall occur as provided in any Permitted Subordinated Notes Document, any
Qualified Preferred Stock Document or any Permitted Disqualified Preferred
Stock Document.


 


“Claims” shall have the meaning provided in the
definition of “Environmental Claims”.


 


“Classmates Acquisition” shall mean the
acquisition by the Borrower of all of the capital stock of Classmates Online by
way of a merger of Mariner Acquisition Corp. with and into Classmates Online
(with Classmates Online to be the surviving corporation of such merger) pursuant
to, and in accordance with, the terms of the Classmates Acquisition Agreement.


 


“Classmates Acquisition Agreement” shall mean
the Agreement and Plan of Merger, dated as of October 23, 2004, among the
Borrower, Mariner Acquisition Corp. and Classmates Online, as in effect on the
Effective Date and as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.


 


“Classmates Acquisition Documents” shall mean
the Classmates Acquisition Agreement and all other agreements and documents
relating to the Classmates Acquisition.


 


“Classmates Online” shall mean Classmates
Online, Inc., a Washington corporation.


 


“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.


 


“Collateral” shall mean all property (whether
real or personal) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Pledge Agreement Collateral, all Security
Agreement Collateral and all Mortgaged Properties.


 


“Collateral Agent” shall mean the
Administrative Agent acting as collateral agent for the Secured Creditors
pursuant to the Security Documents.


 


“Commitment” shall mean, for each Lender, the
amount set forth opposite such Lender’s name in Schedule I directly below
the column entitled “Commitment,” as the same may be reduced or terminated
pursuant to Sections 4.03 and/or 11.


 


“Company” shall mean any corporation, limited
liability company, partnership or other business entity (or the adjectival form
thereof, where appropriate).


 


“Consolidated Current
Assets” shall mean, at any time, the consolidated current assets of the
Borrower and its Subsidiaries at such time.


 


“Consolidated Current
Liabilities” shall mean, at any time, the consolidated current liabilities
of the Borrower and its Subsidiaries at such time, but excluding the current
portion of any Indebtedness under this Agreement and the current portion of any
other long-term Indebtedness which would otherwise be included therein.


 


7





















 


“Consolidated EBITDA” shall mean, for any
period, Consolidated Net Income for such period adjusted by (I) adding thereto
(in each case to the extent deducted in determining Consolidated Net Income for
such period), without duplication, the amount of (i) total interest
expense (inclusive of amortization of deferred financing fees and other
original issue discount and banking fees, charges and commissions (e.g.,
letter of credit fees and commitment fees)) of the Borrower and its
Subsidiaries determined on a consolidated basis for such period, (ii) provision
for taxes based on income and foreign withholding taxes for the Borrower and
its Subsidiaries determined on a consolidated basis for such period,
(iii) all depreciation and amortization expense of the Borrower and its
Subsidiaries determined on a consolidated basis for such period, (iv)
amortization of intangibles (including, but not limited to, goodwill) during
such period, (v) any non-cash charge (including, without limitation, any
non-cash loss associated with the sale or write-down of assets not in the
ordinary course of business (including any write-down of goodwill pursuant to
FASB 142 or any write-downs of discontinued operations pursuant to FASB 144),
non-cash restructuring charges, non-cash merger-related costs, non-cash
relocation costs and non-cash stock-based charges) incurred by the Borrower and
its Subsidiaries during such period (except to the extent any such charge will
require a cash payment in a future period (other than the payment of cash taxes
on behalf of an employee in connection with the acquisition of stock pursuant
to restricted stock or restricted stock right arrangements), (vi) for any
period which includes any portion of any fiscal quarter set forth on Schedule
X, an amount up to the amount set forth under the caption “Restructuring
Charges” on Schedule X, to the extent such Restructuring Charges were actually
recorded or accrued during such period for the purpose specified on Schedule X
for such Restructuring Charges, (vii) in the case of any period during which
fees and expenses are incurred in connection with the Transaction, the amount of
all such fees and expenses incurred during period and (viii) losses or expenses
associated with the extinguishment of debt and (II) subtracting therefrom, to
the extent included in arriving at Consolidated Net Income for such period,
without duplication, the amount of (i) non-cash gains during such period, (ii)
extraordinary gains during such period and (iii) any gains from the sale of
assets not in the ordinary course of business. 
For the avoidance of doubt, it is understood and agreed that, to the
extent any amounts are excluded from Consolidated Net Income by virtue of the
proviso to the definition thereof contained herein, any add backs to
Consolidated Net Income in determining Consolidated EBITDA as provided above
shall be limited (or denied) in a fashion consistent with the proviso to the
definition of Consolidated Net Income contained herein.   Notwithstanding anything to the contrary
contained above, for purposes of determining the Fixed Charge Coverage Ratio,
the Senior Leverage Ratio and the Total Leverage Ratio, to the extent the
amount of Consolidated EBITDA is to be determined for any Test Period which
ends on or prior to September 30, 2005, the amount of Consolidated EBITDA for
all portions of such period occurring prior to the Borrowing Date shall be
calculated in accordance with the definition of Test Period contained herein.


 


“Consolidated
Indebtedness” shall mean, at any time, the sum of (without duplication)
(i) all Indebtedness (excluding Indebtedness described in clauses (ii),
(iii) (to the extent relating to clause (ii), (v) and (vi)), (v) and (vi) of
the definition of Indebtedness) of the


 


 


8





















 


Borrower and its
Subsidiaries (on a consolidated basis) that would be required to be reflected
as debt or Capitalized Lease Obligations on the liability side of a
consolidated balance sheet of the Borrower and its Subsidiaries in accordance
with GAAP, (ii) all Indebtedness of the Borrower and its Subsidiaries of
the type described in clause (ii) of the definition of Indebtedness, to the
extent the aggregate amount of such Indebtedness exceeds $5,000,000 (with only
the amount in excess of $5,000,000 to be included in the determination of “Consolidated
Indebtedness”) and (iii) all Contingent Obligations of the Borrower and
its Subsidiaries in respect of Indebtedness of any third Person (other than a
Credit Party) of the type referred to in preceding clauses (i) and (ii); provided
that, for purposes of this definition (and notwithstanding any contrary treatment
by GAAP), any Permitted Disqualified Preferred Stock shall be treated as “Indebtedness”,
with an amount equal to the greater of the liquidation preference or the
maximum mandatory fixed repurchase price of any such Permitted Disqualified
Preferred Stock deemed to be a component of “Consolidated Indebtedness”.


 


“Consolidated Interest
Expense” shall mean, for any period, (i) the total consolidated cash
interest expense of the Borrower and its Subsidiaries (including, without
limitation, all commissions, discounts and other commitment and banking fees
and charges (e.g., fees with respect to letters of credit, Interest Rate
Protection Agreements and Other Hedging Agreements) for such period, adjusted
to exclude (to the extent same would otherwise be included in the calculation
above in this clause (i)) the amortization of any deferred financing costs
(including, without limitation, fees and expenses payable in connection with
the Credit Documents and other financing costs payable in connection with the
Transaction or in respect of Interest Rate Protection Agreements and Other
Hedging Agreements) for such period and any interest expense actually “paid-in-kind”
or accreted during such period, plus (ii) without duplication, that
portion of Capitalized Lease Obligations of the Borrower and its Subsidiaries
on a consolidated basis representing the interest factor for such period plus
(iii) the product of (x) the amount of all cash Dividend requirements (whether
or not declared or paid) on Permitted Disqualified Preferred Stock paid,
accrued or scheduled to be paid or accrued during such period multiplied
by (y) a fraction, the numerator of which is one and the denominator of which
is one minus the then current effective consolidated Federal, state, local and
foreign tax rate of the Borrower as reflected in the audited consolidated
financial statements of the Borrower for its most recently completed fiscal
year, which amounts described in this clause (iii) shall be treated as interest
expense of the Borrower and its Subsidiaries for purposes of this definition
regardless of the treatment of such amounts under GAAP, in each case net of the
total consolidated cash interest income of the Borrower and its Subsidiaries
for such period and net of cash payments received by the Borrower or any of its
Subsidiaries under any Interest Rate Protection Agreement during such period,
but excluding the amortization of any deferred financing costs or of any costs
in respect of any Interest Rate Protection Agreement.


 


“Consolidated Net Income” shall mean, for any
period, the net income (or loss) of the Borrower and its Subsidiaries
determined on a consolidated basis for such period (taken as a single
accounting period) in accordance with GAAP, provided that the following
items shall be excluded in computing Consolidated Net Income (without
duplication):  (i) the net income (or
loss) of any Person in which a Person or Persons other than the Borrower and
its Wholly-Owned Subsidiaries has an Equity Interest or Equity Interests, to
the extent of such Equity Interests held by Persons other than the Borrower and
its Wholly-Owned Subsidiaries in such Person, (ii) except for determinations
expressly required to be made on a Pro  Forma Basis, the net
income


 


9





















 


(or loss) of any Person
accrued prior to the date it becomes a Subsidiary or all or substantially all
of the property or assets of such Person are acquired by a Subsidiary and (iii)
the net income of any Subsidiary, to the extent that the declaration or payment
of dividends or similar distributions by such Subsidiary of such net income is
not at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary; provided that the net income
of a Subsidiary Guarantor shall not be excluded pursuant to preceding clause
(iii), except to the extent its performance under the Subsidiaries Guaranty is
not permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary Guarantor.


 


“Consolidated Senior Indebtedness” shall mean,
at any time, the sum of (i) all Consolidated Indebtedness at such time less
(ii) the aggregate outstanding principal amount of all Indebtedness
subordinated in right of payment to the prior payment in full of the
Obligations on terms acceptable to the Administrative Agent in its sole
discretion at such time (including, in any event, any Permitted Subordinated
Notes, any Permitted Exchange Subordinated Notes and any Shareholder
Subordinated Notes outstanding at such time) less (iii) the “amount” (if
any) of Permitted Disqualified Preferred Stock deemed to be included as “Consolidated
Indebtedness” at such time pursuant to the definition thereof.


 


“Contingent Obligation” shall mean, as to any
Person, any obligation of such Person as a result of such Person being a
general partner of any other Person, unless the underlying obligation is
expressly made non-recourse as to such general partner, and any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations (“primary obligations”) of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business.  The amount of
any Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.


 


“Continuing Directors” shall mean the directors
of the Borrower on the Effective Date and each other director if such director’s
nomination for the election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors.


 


10





















 


“Credit Documents” shall mean this Agreement,
the Subsidiaries Guaranty, the Pledge Agreement, the Security Agreement and,
after the execution and delivery thereof pursuant to the terms of this
Agreement, each Note and each other Security Document.


 


“Credit Party” shall mean the Borrower and each
Subsidiary Guarantor.


 


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


 


“Defaulting Lender” shall mean any Lender with
respect to which a Lender Default is in effect.


 


“Dividend” shall mean, with respect to any
Person, that such Person has declared or paid a dividend, distribution or
returned any equity capital to its stockholders, partners or members or
authorized or made any equivalent distribution, payment or delivery of property
(other than common Equity Interests or options or warrants to acquire Equity
Interests of such Person) or cash to its stockholders, partners or members in
their capacity as such, or redeemed, retired, purchased or otherwise acquired,
directly or indirectly, for consideration (other than consideration
constituting common Equity Interests of such Person) any shares of any class of
its capital stock or any other Equity Interests outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect
to its capital stock or other Equity Interests), or set aside any funds for any
of the foregoing purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of
the capital stock or any other Equity Interests of such Person outstanding on
or after the Effective Date (or any options or warrants issued by such Person
with respect to its capital stock or other Equity Interests).  Without limiting the foregoing, “Dividends”
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes, except to the extent such payments have
reduced Consolidated EBITDA during the respective period.


 


“Documents” shall mean, collectively, the
Credit Documents and the Tender Offer Documents.


 


“Dollars” and the sign “$” shall each
mean freely transferable lawful money of the United States.


 


“Domestic Subsidiary” of any Person shall mean
any Subsidiary of such Person incorporated or organized in the United States or
any State or territory thereof or the District of Columbia.


 


“Effective Date” shall have the meaning
provided in the preamble to Section 6.


 


“Eligible Transferee” shall mean and include a
commercial bank, an insurance company, a finance company, a financial
institution, any fund that invests in loans in the ordinary course of its
business or any other “accredited investor” (as defined in Regulation D of the
Securities Act), but in any event excluding the Borrower and its Subsidiaries.


 


11





















 


“Environmental Claims” shall mean any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations or
proceedings under any Environmental Law or any permit issued, or any approval
given, under any such Environmental Law (hereafter, “Claims”),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.


 


“Environmental Law” shall mean any applicable
Federal, state, foreign or local statute, law, rule, regulation, ordinance,
code and rule of common law now or hereafter in effect and in each case as
amended, and any applicable, final and legally binding judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C § 6901
et  seq.; the Federal Water Pollution Control Act, 33 U.S.C.
§ 1251 et  seq.; the Toxic Substances Control Act, 15 U.S.C.
§ 2601 et  seq.; the Clean Air Act, 42 U.S.C. § 7401 et
seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et  seq.;
the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et  seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C.
§ 11001 et  seq.; the Hazardous Material Transportation Act,
49 U.S.C. § 1801 et  seq.; the Occupational Safety and Health Act,
29 U.S.C. § 651 et  seq. (as it relates to Hazardous
Materials); and any applicable state and local or foreign counterparts or
equivalents, in each case as amended from time to time.


 


“Equity Interests”
of any Person shall mean any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interest in
(however designated) equity of such Person, including any preferred stock, any
limited or general partnership interest and any limited liability company
membership interest.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder. 
Section references to ERISA are to ERISA, as in effect at the date of
this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each person (as
defined in Section 3(9) of ERISA) which together with the Borrower or a
Subsidiary of the Borrower would be deemed to be a “single employer” (i) within
the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result
of the Borrower or a Subsidiary of the Borrower being or having been a general
partner of such person.


 


“Eurodollar Loan” shall mean each Term Loan
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.


 


“Eurodollar Rate” shall mean (a) the offered
quotation to first-class banks in the New York interbank Eurodollar market by
the Administrative Agent for Dollar deposits of amounts in immediately
available funds comparable to the outstanding principal amount of the


 


12





















 


Eurodollar Loan of the
Administrative Agent (in its capacity as a Lender) with maturities comparable
to the Interest Period applicable to such Eurodollar Loan commencing two
Business Days thereafter as of 10:00 A.M. (New York time) on the applicable
Interest Determination Date, divided (and rounded upward to the nearest 1/16 of
1%) by (b) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).


 


“Event of Default” shall have the meaning
provided in Section 11.


 


“Excess Cash Flow” shall mean, for any period,
the remainder of (a) the sum of, without duplication, (i) Adjusted Consolidated
Net Income for such period, (ii) the decrease, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period, and (iii) any
cash payment received by the Borrower or any of its Subsidiaries during such
period in respect of a non-cash gain or credit from a prior Excess Cash Payment
Period, to the extent such non-cash gain or credit was deducted in calculating
Adjusted Consolidated Net Income in such prior Excess Cash Payment Period, minus
(b) the sum of, without duplication, (i) the aggregate amount of all Capital
Expenditures made by the Borrower and its Subsidiaries during such period
(other than Capital Expenditures to the extent financed with equity proceeds,
Equity Interests, Asset Sale proceeds (to the extent not included in Adjusted
Consolidated Net Income during such period), insurance proceeds (to the extent
not included in Adjusted Consolidated Net Income during such period) or
Indebtedness), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of the Borrower and its Subsidiaries during such period (other than (1)
repayments made with the proceeds of Asset Sales (to the extent not included in
Adjusted Consolidated Net Income during such period), equity issuances,
insurance (to the extent not included in Adjusted Consolidated Net Income
during such period) or Indebtedness and (2) payments of Term Loans, provided
that repayments of Term Loans shall be deducted in determining Excess Cash Flow
to the extent such repayments were (x) required as a result of a Scheduled
Repayment pursuant to Section 5.02(b) or (y) made as a voluntary prepayment
pursuant to Section 5.01 with internally generated funds), (iii) the increase,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period, (iv) the aggregate amount of all cash payments made in
respect of all Permitted Acquisitions consummated by the Borrower and its
Subsidiaries during such period (other than any such payments to the extent
financed with equity proceeds, Asset Sale proceeds (to the extent not included
in Adjusted Consolidated Net Income during such period), insurance proceeds (to
the extent not included in Adjusted Consolidated Net Income during such period)
or Indebtedness), (v) the aggregate amount of cash Dividends paid by the
Borrower pursuant to Section 10.03(iv) during such period, (vi) the aggregate
amount of all cash payments in respect of Investments permitted under Sections
10.05(x) and (xv) and (vii) any cash payment made by the Borrower or any of its
Subsidiaries during such period in respect of a non-cash charge or loss
incurred or accrued in a prior Excess Cash Payment Period, to the extent such
non-cash charge or loss was added back in the calculation of Adjusted
Consolidated Net Income in such prior Excess Cash Payment Period.


 


13





















 


“Excess Cash Payment Date” shall mean the date
occurring 90 days after the last day of each fiscal year of the Borrower
(commencing with the fiscal year of the Borrower ended December 31, 2005).


 


“Excess Cash Payment Period” shall mean, with
respect to the repayment required on any Excess Cash Payment Date, the
immediately preceding fiscal year of the Borrower.


 


“Excess Proceeds Amount” shall initially be $0,
which amount shall be (A) increased (i) on each Excess Cash Payment
Date, so long as any repayment required pursuant to Section 5.02(f) has been
made, by an amount equal to 50% of the Excess Cash Flow for the then applicable
Excess Cash Payment Period and (ii) on the date of the receipt by the
Administrative Agent of an officer’s certificate from an Authorized Officer of
the Borrower certifying that (I) the Borrower has received Net Cash Proceeds
from a sale or issuance of Equity Interests of the Borrower (other than
Permitted Disqualified Preferred Stock), (II) any repayment pursuant to Section
5.02(c) that is required to be made with such Net Cash Proceeds pursuant to
said Section has been made and (III) the portion of such Net Cash Proceeds not
required to be applied as a mandatory repayment of Term Loans pursuant to
Section 5.02(c) and which is to be included in the determination of “Excess
Proceeds Amount” has not been used (and is not intended to be used) to finance
a Permitted Acquisition, by an amount equal to the Net Cash Proceeds from such
sale or issuance multiplied by a percentage equal to 100% minus
the Applicable Prepayment Percentage then in effect, and (B) reduced on
each Excess Cash Payment Date where Excess Cash Flow for the immediately
preceding Excess Cash Payment Period is a negative number, by such amount (it
being understood that the Excess Proceeds Amount may be reduced to an amount
below zero after giving effect to the reduction contemplated by this clause
(B)).


 


“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.


 


“Excluded Permitted Junior Capital Amount”
shall mean, at any time, $50,000,000; provided that (i) if calculations
are made by the Borrower demonstrating compliance with a Senior Leverage Ratio
of less than 0.75:1.00 at such time, determined on a Pro  Forma
Basis (after giving effect to the respective issuance of Permitted Subordinated
Notes or Permitted Disqualified Preferred Stock, as the case may be, and the
application of the Net Cash Proceeds therefrom as if same had been consummated
on the first day of the respective Calculation Period) and (ii) the Borrower
shall furnish to the Administrative Agent a certificate from an Authorized
Officer of the Borrower certifying, to the best of his or her knowledge, as to
compliance with the requirements of preceding sub-clause (i) (and containing
the calculations required thereby), the Excluded Permitted Junior Capital
Amount at such time shall instead be $75,000,000.


 


“Execution Date” shall have the meaning
provided in Section 13.10.


 


“Existing Indebtedness” shall have the meaning
provided in Section 6.02(c).


 


“Existing Indebtedness Agreements” shall have
the meaning provided in Section 7.12(ii).


 


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“Existing Letters of Credit” shall mean each of
the letters of credit described on Schedule XII.


 


“FASB 142” shall mean Statement of Financial
Accounting Standards No. 142 issued on June 29, 2001 by the Financial
Accounting Standards Board.


 


“FASB 144” shall mean Statement of Financial
Accounting Standards No. 144 issued in August, 2001 by the Financial Accounting
Standards Board.


 


“Fair Market Value” shall mean, with respect to
any asset, the price at which a willing buyer, not an Affiliate of the seller,
and a willing seller who does not have to sell, would agree to purchase and
sell such asset, as determined in good faith by the board of directors or other
governing body or, pursuant to a delegation of authority by such board of
directors or governing body, a senior executive officer, of the Borrower, or
the Subsidiary of the Borrower selling such asset.


 


“Federal Funds Rate” shall mean, for any
period, a fluctuating interest rate equal for each day during such period to
the weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.


 


“Fees” shall mean all amounts payable pursuant
to or referred to in Section 4.01.


 


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


 


“Fixed Charges” shall mean, for any period, the
sum, without duplication, of (i) Consolidated Interest Expense for such period,
(ii) the scheduled principal amount of all scheduled amortization payments on
all Indebtedness of the Borrower and its Subsidiaries for such period
(including the principal component of all Capitalized Lease Obligations) as
determined on the first day of such period (or, with respect to a given issue
of Indebtedness incurred thereafter, on the date of the incurrence thereof),
(iii) the amount of all cash payments made by the Borrower and its Subsidiaries
in respect of income taxes or income tax liabilities during such period (net of
cash tax refunds received by the Borrower and its Subsidiaries during such
period and excluding taxes related to asset sales not in the ordinary course of
business), (iv) the aggregate amount of all cash Capital Expenditures made by
the Borrower and its Subsidiaries during such period (other than Capital
Expenditures, to the extent financed with equity proceeds, Asset Sale proceeds,
insurance proceeds or Indebtedness) and (v) the aggregate amount of all cash
Dividends (including stock repurchases) made or paid by the Borrower during
such period (excluding any Dividends made or paid by the Borrower pursuant to
Sections 10.03(iii) and (iv) during such period).  Notwithstanding anything to the contrary
contained above, for purposes of determining the Fixed Charge Coverage Ratio,
to the extent the amount of Fixed Charges is to be determined for any Test
Period which ends on or prior to September 30, 2005, the amount of


 


15





















 


Fixed Charges for all
portions of such period occurring prior to the Borrowing Date shall be
calculated in accordance with the definition of Test Period contained herein.


 


“Foreign Pension Plan” shall mean any plan,
fund (including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States by the Borrower or
any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States, which
plan, fund or other similar program provides, or results in, retirement income,
a deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.


 


“Foreign Subsidiary” of any Person shall mean
any Subsidiary of such Person that is not a Domestic Subsidiary.


 


“GAAP” shall mean generally accepted accounting
principles in the United States as in effect from time to time; provided
that, except as otherwise specifically provided herein, for purposes of
computations of Excess Cash Flow and the Senior Leverage Ratio, and all
computations and all definitions (including accounting terms) used in
determining compliance with Sections 10.07 through 10.10, inclusive, GAAP shall
be determined on the basis of such principles in effect on the date of, and
consistent with those used in, the preparation of the most recent audited
financial statements described in Section 8.05(a).  In the event that any Accounting Change shall
occur and result in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the
Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement to equitably reflect such Accounting Change with
the desired result that the criteria for evaluating the Credit Parties’
financial condition shall be the same after such Accounting Change as if such
Accounting Change had not occurred. 
Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Change had not occurred.


 


“Hazardous Materials” shall mean (a) any
petroleum or petroleum products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam insulation, dielectric
fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of “hazardous substances,” “hazardous waste,” “hazardous materials,”
“extremely hazardous substances,” “restricted hazardous waste,” “toxic
substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the exposure to, or Release of which is
prohibited, limited or regulated under any applicable Environmental Law.


 


“Indebtedness” shall mean, as to any Person,
without duplication, (i) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services, (ii) the maximum
amount available to be drawn or paid under all letters of credit, bankers’
acceptances, bank guaranties, surety and appeal bonds and similar obligations
issued for the account of such Person and all unpaid drawings and unreimbursed
payments in respect of such letters of credit, bankers’ acceptances, bank
guaranties, surety and appeal bonds and similar


 


16





















 


obligations, (iii) all
indebtedness of the types described in clause (i), (ii), (iv), (v) or (vi) of
this definition secured by any Lien on any property owned by such Person,
whether or not such indebtedness has been assumed by such Person (provided
that, if the Person has not assumed or otherwise become liable in respect of
such indebtedness, such indebtedness shall be deemed to be in an amount equal
to the Fair Market Value of the property to which such Lien relates), (iv) all
Capitalized Lease Obligations of such Person, (v) all Contingent Obligations of
such Person, and (vi) all obligations under any Interest Rate Protection
Agreement, any Other Hedging Agreement or under any similar type of
agreement.  The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is
directly liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.  Notwithstanding the foregoing, Indebtedness
shall not include trade payables, accrued expenses and deferred tax and other
credits incurred by any Person in accordance with customary practices and in
the ordinary course of business of such Person.


 


“Insignificant
Subsidiary” shall mean any Subsidiary of the Borrower that has consolidated
gross assets which, if aggregated with the consolidated gross assets of all
other Subsidiaries of the Borrower with respect to which an event described
under Section 11.05 or 11.09 has occurred and is continuing, would not exceed
2.50% of the consolidated gross assets of the Borrower and its Subsidiaries
taken as a whole.


 


“Intercompany Debt” shall mean any
Indebtedness, whether now existing or hereafter incurred, owed by the Borrower
or any Subsidiary of the Borrower to the Borrower or any other Subsidiary of
the Borrower.


 


“Intercompany Loans” shall have the meaning
provided in Section 10.05(vii).


 


“Intercompany Note” shall mean a promissory
note evidencing Intercompany Debt, duly executed and delivered substantially in
the form of Exhibit L (or such other form as shall be satisfactory to the
Administrative Agent in its reasonable discretion), with blanks completed in
conformity herewith.


 


“Intercompany Scheduled Existing Indebtedness”
shall have the meaning provided in Section 6.02(c).


 


“Interest Determination Date” shall mean, with
respect to any Eurodollar Loan, the second Business Day prior to the
commencement of any Interest Period relating to such Eurodollar Loan.


 


“Interest Period” shall have the meaning
provided in Section 2.09.


 


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


 


“Investments” shall have the meaning provided
in Section 10.05.


 


17





















 


“Joint Venture” shall mean any Person, other
than an individual or a Wholly-Owned Subsidiary of the Borrower, (i) in which
the Borrower or a Subsidiary of the Borrower holds or acquires an ownership
interest (whether by way of capital stock, partnership or limited liability
company interest, or other evidence of ownership) and (ii) which is engaged in
a Permitted Business.


 


“Juno India” shall mean Juno Online Services
Private Development Limited, a corporation organized under the laws of India.


 


“Lead Arranger” shall mean Deutsche Bank
Securities Inc., in its capacity as Lead Arranger and Book Manager, and any
successor thereto.


 


“Leaseholds” of any Person shall mean all the
right, title and interest of such Person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.


 


“Lender” shall mean each financial institution
listed on Schedule I, as well as any Person that becomes a “Lender” hereunder
pursuant to Section 2.13 or 13.04(b).


 


“Lender Default” shall mean (i) the wrongful
refusal (which has not been retracted) or the failure of a Lender to make
available its portion of any Borrowing or (ii) a Lender having notified in
writing the Borrower and/or the Administrative Agent that such Lender does not
intend to comply with its obligations under Section 2.01.


 


“Lien” shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).


 


“Margin Stock” shall have the meaning provided
in Regulation U.


 


“Material Adverse Effect” shall mean (i) a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole or (ii) a material adverse effect (x) on the rights or
remedies of the Lenders, the Administrative Agent or the Collateral Agent
hereunder or under any other Credit Document or (y) on the ability of any
Credit Party to perform in any material respect its obligations to the Lenders,
the Administrative Agent or the Collateral Agent hereunder or under any other
Credit Document.


 


“Maturity Date” shall mean December 13, 2008.


 


 “Maximum
Junior Capital Amount” shall mean, at any time, the remainder of (i)
$100,000,000 minus (ii) the aggregate principal amount of all Permitted
Subordinated Notes repaid after the Effective Date minus (iii) the
aggregate liquidation preference of all Permitted Disqualified Preferred Stock
redeemed, repurchased or otherwise acquired for value by the Borrower after the
Effective Date.


 


18





















 


“Minimum Borrowing Amount” shall mean
$5,000,000.


 


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


 


“Mortgage” shall mean a mortgage, leasehold
mortgage, deed of trust, leasehold deed of trust, deed to secure debt,
leasehold deed to secure debt or similar security instrument.


 


“Mortgage Policy” shall mean a Lender’s title
insurance policy (Form 1992).


 


“Mortgaged Property” shall mean any Real
Property owned or leased by the Borrower or any of its Subsidiaries which is
encumbered (or required to be encumbered) by a Mortgage pursuant to the terms
hereof.


 


“NAIC” shall mean the National Association of
Insurance Commissioners.


 


“Net Cash Proceeds”
shall mean, for any event requiring a repayment of Term Loans pursuant to
Section 5.02, the gross cash proceeds (including any cash received by way of
deferred payment pursuant to a promissory note, receivable or otherwise, but
only as and when received) received from such event, net of reasonable
transaction costs (including, as applicable, any underwriting, brokerage or
other customary commissions and reasonable legal, advisory, accounting,
printing and other fees and expenses associated therewith) received from any
such event.


 


“Net Sale Proceeds” shall mean for any sale or
other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable
or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including,
without limitation, any underwriting, brokerage or other customary selling
commissions, reasonable legal, advisory and other fees and expenses (including
title and recording expenses), associated therewith and sales, VAT and transfer
taxes arising therefrom), (ii) payments of unassumed liabilities relating to
the assets sold or otherwise disposed of at the time of, or within 60 days
after, the date of such sale or other disposition, (iii) the amount of such
gross cash proceeds required to be used to permanently repay any Indebtedness
(other than Indebtedness of the Lenders pursuant to this Agreement) which is
secured by the respective assets which were sold or otherwise disposed of, and
(iv) the estimated net marginal increase in income taxes which will be payable
by the Borrower’s consolidated, combined, unitary or similar group or any
Subsidiary of the Borrower as a result of such sale or other disposition; provided,
however, that such gross proceeds shall not include any portion of such
gross cash proceeds which the Borrower determines in good faith should be
reserved for post-closing adjustments (to the extent the Borrower delivers to
the Lenders a certificate signed by an Authorized Officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than
270 days following the date of the respective asset sale), the amount (if any)
by which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by the Borrower or any of its
Subsidiaries shall constitute Net Sale Proceeds on such date received by the
Borrower and/or any of its Subsidiaries from such sale or other disposition.


 


19





















 


“Non-Defaulting Lender” shall mean and include
each Lender other than a Defaulting Lender.


 


“Non-Wholly Owned Subsidiary” shall mean, as to
any Person, each Subsidiary of such Person which is not a Wholly-Owned
Subsidiary of such Person.


 


“Note” shall have the meaning provided in
Section 2.05(a).


 


“Notice of Borrowing” shall have the meaning
provided in Section 2.03(a).


 


“Notice of Conversion/Continuation” shall have
the meaning provided in Section 2.06.


 


“Notice Office” shall mean the office of the
Administrative Agent located at 60 Wall Street, New York, New York 10005,
Attention: Anca Trifan, Facsimile: 212-797-5692 or such other office or person
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.


 


“Obligations” shall mean all amounts owing to
the Administrative Agent, the Collateral Agent or any Lender pursuant to the
terms of this Agreement or any other Credit Document.


 


“Other Hedging Agreements” shall mean any
foreign exchange contracts, currency swap agreements, commodity agreements or
other similar arrangements, or arrangements designed to protect against
fluctuations in currency values or commodity prices.


 


“Payment Office” shall mean the office of the
Administrative Agent located at 60 Wall Street, New York, New York 10005,
Attention:  Anca Trifan, Facsimile:
212-797-5692 or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.


 


“PBGC” shall mean the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any successor
thereto.


 


“Permitted Acquired Debt” shall have the
meaning set forth in Section 10.04(iv).


 


“Permitted Acquisition” shall mean the
acquisition by the Borrower or a Wholly-Owned Subsidiary of the Borrower of an
Acquired Entity or Business (including by way of merger of such Acquired Entity
or Business with and into the Borrower (so long as the Borrower is the
surviving corporation) or with a Wholly-Owned Subsidiary of the Borrower (so
long as the surviving corporation is a Wholly-Owned Subsidiary)), provided
that (in each case) (A) in
the case of the acquisition of 100% of the Equity Interests of any Acquired
Entity or Business (including by way of merger), such Acquired Entity or Business shall own no other Equity Interests
of any other Person unless either (x) such Acquired Entity or Business owns
100% of the Equity Interests of such other Person or (y) if such Acquired
Entity or Business owns Equity Interests in any other Person which is a Non-Wholly
Owned Subsidiary of such Acquired Entity or Business, (1) such Acquired Entity
or Business shall not have been created or established in contemplation of, or
for purposes of, the respective Permitted Acquisition, (2) any such


 


20





















 


Non-Wholly
Owned Subsidiary of the Acquired Entity or Business shall have been a
Non-Wholly Owned Subsidiary of such Acquired Entity or Business prior to the
date of the respective Permitted Acquisition and shall not have been created or
established in contemplation thereof and (3) such Acquired Entity or Business
and/or its Wholly-Owned Subsidiaries own at least 80% of the total value of all
the assets owned by of such Acquired Entity or Business and its subsidiaries
(for purposes of such determination, excluding the value of the Equity
Interests of Non-Wholly Owned Subsidiaries held by such Acquired Entity or
Business and its Wholly-Owned Subsidiaries), (B) the Acquired Entity or
Business acquired pursuant to the respective Permitted Acquisition is in a
Permitted Business and (C) all requirements of Sections 9.16, 10.02 and 10.15
applicable to Permitted Acquisitions are satisfied.  Notwithstanding anything to the contrary
contained in the immediately preceding sentence, an acquisition which does not
otherwise meet the requirements set forth above in the definition of “Permitted
Acquisition” shall constitute a Permitted Acquisition if, and to the extent,
the Required Lenders agree in writing, prior to the consummation thereof, that
such acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.


 


“Permitted Business” shall mean the provision
of internet-related services and products and any other business or activities
as may be substantially similar, incidental, ancillary or related thereto, and
reasonable extensions of the foregoing.


 


“Permitted Disqualified Preferred Stock” shall
mean any Preferred Equity of the Borrower, all terms and conditions of which
(including covenants, defaults, remedies, redemption provisions, maturity,
voting provisions, dividend rate and cash-pay limitations), and the
documentation therefor, are on market terms for a placement of preferred equity
securities and are otherwise reasonably satisfactory to the Administrative Agent
and the Required Lenders (it being understood that, after the Administrative
Agent has approved the relevant documentation with respect to any Permitted
Disqualified Preferred Stock, such documentation shall be distributed to the
Lenders and, if a given Lender has not objected to the terms of the relevant
documentation within 5 Business Days after delivery thereof, such terms,
conditions and documentation shall be deemed satisfactory to such Lender); provided,
that in any event, unless the Required Lenders otherwise expressly consent in
writing prior to the issuance thereof, the terms of any such Preferred Equity
shall not contain any mandatory redemption, repayment, sinking fund or similar
provision prior to the date occurring 180 days following the Maturity Date
(except upon the occurrence of a “change of control” or similar event
(including Asset Sales), in each case so long the provisions relating to a “change
of control” or similar event included in the Permitted Disqualified Preferred
Stock Documents provide that either (I) the consent of the Required Lenders
shall have been obtained or (II) the Obligations shall have been paid in full
in cash, in either case prior to the satisfaction of such provisions in the
Permitted Disqualified Preferred Stock Documents).


 


“Permitted Disqualified Preferred Stock Documents”
shall mean any Permitted Disqualified Preferred Stock and any certificate of
designation or other agreement governing such Permitted Disqualified Preferred
Stock, as the same may be amended, modified and/or supplemented from time to
time in accordance with the terms hereof and thereof.


 


21





















 


“Permitted Encumbrance” shall mean, with
respect to any Mortgaged Property, such exceptions to title as are set forth in
the Mortgage Policy delivered with respect thereto, all of which exceptions
must be acceptable to the Administrative Agent in its reasonable discretion.


 


“Permitted Exchange Subordinated Notes” shall
mean senior subordinated notes issued in exchange for Permitted Subordinated
Notes pursuant to the relevant Permitted Subordinated Notes Indenture, which
Permitted Exchange Subordinated Notes are substantially identical securities to
the originally issued Permitted Subordinated Notes and shall be issued pursuant
to a registered exchange offer or private exchange offer for the Permitted
Subordinated Notes on market terms reasonably satisfactory to the
Administrative Agent; provided that in no event will the issuance of any
Permitted Exchange Subordinated Notes increase the aggregate principal amount
of Permitted Subordinated Notes theretofore outstanding or otherwise result in
an increase in the interest rate applicable to the Permitted Subordinated Notes
theretofore outstanding.


 


“Permitted Liens” shall have the meaning
provided in Section 10.01.


 


“Permitted Refinancing Indebtedness” shall mean
any Indebtedness of the Borrower and its Subsidiaries issued or given in
exchange for, or the proceeds of which are used to, extend, refinance, renew,
replace or refund any Scheduled Existing Indebtedness, Permitted Acquired Debt
or any Indebtedness issued to so extend, refinance, renew, replace, substitute
or refund any such Indebtedness, so long as (a) except in the case of
Intercompany Debt, such Indebtedness has a weighted average life to maturity
greater than or equal to the weighted average life to maturity of the
Indebtedness being extended, refinanced, renewed, replaced or refunded, (b)
such extension, refinancing, renewal, replacement or refunding does not (i)
increase the amount of such Indebtedness outstanding immediately prior to such
extension, refinancing, renewal, replacement or refunding (except to the extent
of fees and interest on such Indebtedness) or (ii) add guarantors, obligors or
security from that which applied to such Indebtedness being extended,
refinanced, renewed, replaced or refunded, (c) such Indebtedness has
substantially the same (or, from the perspective of the Lenders, more
favorable) subordination provisions, if any, as applied to the Indebtedness
being extended, renewed, refinanced, replaced or refunded, and (d) except in
the case of Intercompany Debt, all other terms of such extension, refinancing,
renewal, replacement or refunding (including, without limitation, with respect
to the amortization schedules, redemption provisions, maturities, covenants,
defaults and remedies) are not less favorable in any material respect to the
respective borrower than those previously existing with respect to the
Indebtedness being extended, refinanced, renewed, replaced or refunded; provided,
however, that any Intercompany Scheduled Existing Indebtedness (and
subsequent extensions, refinancings, renewals, replacements and refundings
thereof as provided above in this definition) may only be extended, refinanced,
renewed, replaced or refunded as provided above in this definition if the
Indebtedness so extended, refinanced, renewed, replaced or refunded has the
same obligors(s) and obligee(s) as the Indebtedness being extended, refinanced,
renewed, replaced or refunded.


 


“Permitted Subordinated Notes” shall mean any
Indebtedness of the Borrower evidenced by subordinated notes and incurred
pursuant to one or more issuances of such subordinated notes, all of terms and
conditions of which (including, without limitation, with respect to interest
rate, amortization, redemption provisions, maturities, covenants, defaults,


 


22





















 


remedies, guaranties and
subordination provisions) are on market terms for a private placement of
subordinated notes under Rule 144A of the Securities Act and are otherwise
reasonably satisfactory to the Administrative Agent and the Required Lenders
(it being understood that, after the Administrative Agent has approved the
relevant documentation with respect to any Permitted Subordinated Notes, such
documentation shall be distributed to the Lenders and, if a given Lender has
not objected to the terms of the relevant documentation within 5 Business Days
after delivery thereof, such terms, conditions and documentation shall be
deemed satisfactory to such Lender), as such Indebtedness may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof; provided, that in any event, unless the Required
Lenders otherwise expressly consent in writing prior to the issuance thereof,
(i) no such Indebtedness shall be secured by any asset of the Borrower or any
of its Subsidiaries, (ii) no such Indebtedness shall be guaranteed by any
Person other than a Subsidiary Guarantor and (iii) no such Indebtedness shall
be subject to scheduled amortization or have a final maturity, in either case
prior to the date occurring 180 days following the Maturity Date.  As used in this Agreement (other than this
definition), the term “Permitted Subordinated Notes” shall include any
Permitted Exchange Subordinated Notes issued pursuant to the Permitted
Subordinated Notes Indenture in exchange for outstanding Permitted Subordinated
Notes, as contemplated by the definition of “Permitted Exchange Subordinated
Notes”.


 


“Permitted Subordinated Notes Documents” shall
mean, on and after the execution and delivery thereof, each Permitted
Subordinated Notes Indenture, the Permitted Subordinated Notes and all other
documents relating to each issuance of the Permitted Subordinated Notes, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.


 


“Permitted Subordinated Notes Indenture” shall
mean any indenture or similar agreement entered into in connection with an
issuance of Permitted Subordinated Notes, as the same may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof.


 


“Person” shall mean any individual,
partnership, joint venture, firm, corporation, association, limited liability
company, trust or other enterprise or any government or political subdivision
or any agency, department or instrumentality thereof.


 


“Plan” shall mean any pension plan as defined
in Section 3(2) of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and with respect to a pension plan subject to
Title IV of ERISA, each such plan for the five year period immediately
following the latest


 


23





















 


date on which the
Borrower, a Subsidiary of the Borrower or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.


 


“Pledge Agreement” shall have the meaning
provided in Section 7.09.


 


“Pledge Agreement Collateral” shall mean all “Collateral”
as defined in the Pledge Agreement.


 


“Pledgee” shall have the meaning provided in
the Pledge Agreement.


 


“Preferred Equity”, as applied to the Equity
Interests of any Person, means Equity Interests of such Person (other than
common Equity Interests of such Person) of any class or classes (however
designed) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Equity Interests of any
other class of such Person, and shall include any Qualified Preferred Stock and
any Permitted Disqualified Preferred Stock.


 


“Prime Lending Rate” shall mean the rate which
the Administrative Agent announces from time to time as its prime lending rate,
the Prime Lending Rate to change when and as such prime lending rate
changes.  The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer by the Administrative Agent, which may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.


 


“Pro Forma Basis”
shall mean, in connection with any calculation of compliance with any financial
covenant or financial term, the calculation thereof after giving effect on a pro
forma basis to (x) the incurrence of any Indebtedness (other than
revolving Indebtedness, except to the extent same is incurred to refinance
other outstanding Indebtedness or to finance a Permitted Acquisition) and the
issuance of any Preferred Equity (other than Qualified Preferred Stock) after
the first day of the relevant Test Period or Calculation Period, as the case
may be, as if such Indebtedness or Preferred Equity had been incurred or issued
(and the proceeds thereof applied) on the first day of such Test Period or
Calculation Period, as the case may be, (y) the permanent repayment of any
Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) and any
Preferred Equity (other than Qualified Preferred Stock) after the first day of
the relevant Test Period or Calculation Period as if such Indebtedness or
Preferred Equity had been retired, repaid or redeemed on the first day of such
Test Period or Calculation Period, as the case may be, and (z) the Permitted
Acquisition or the Significant Asset Sale, as the case may be, then being consummated,
as well as any other Permitted Acquisition or any other Significant Asset Sale
if (but only if) the same has been consummated after the first day of the
relevant Test Period or Calculation Period, as the case may be, and on or prior
to the date of the respective Permitted Acquisition or the respective
Significant Asset Sale, as the case may be, then being effected, with the
following rules to apply in connection therewith:


 


(i)            all
Indebtedness and Preferred Equity (other than Qualified Preferred Stock) (x)
(other than revolving Indebtedness, except to the extent same is incurred to
refinance other outstanding Indebtedness or to finance Permitted Acquisitions)


 


24





















 


incurred or issued after
the first day of the relevant Test Period or Calculation Period (whether
incurred to finance a Permitted Acquisition, to refinance Indebtedness or
otherwise) shall be deemed to have been incurred or issued (and the proceeds
thereof applied) on the first day of the such Test Period or Calculation
Period, as the case may be and remain outstanding through the date of
determination (and thereafter, in the case of projections pursuant to Section
9.16) and (y) (other than revolving Indebtedness, except to the extent accompanied
by a corresponding permanent commitment reduction) permanently retired or
redeemed after the first day of the relevant Test Period or Calculation Period
shall be deemed to have been retired or redeemed on the first day of such Test
Period or Calculation Period, as the case may be, and remain retired through
the date of determination (and thereafter, in the case of projections pursuant
to Section 9.16);


 


(ii)           all
Indebtedness and Preferred Equity (other than Qualified Preferred Stock)
assumed to be outstanding pursuant to preceding clause (i) shall be deemed to
have borne interest or accrued dividends, as the case may be, at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or Preferred Equity
or (y) the rates which would have been applicable thereto during the respective
period when same was deemed outstanding, in the case of floating rate
Indebtedness or Preferred Equity (although interest expense or Dividend
requirements with respect to any Indebtedness or Preferred Equity, as the case
may be, for periods while same was actually outstanding during the respective
period shall be calculated using the actual rates applicable thereto while same
was actually outstanding); provided that all Indebtedness and Preferred
Equity (whether actually outstanding or deemed outstanding) bearing interest at
a floating rate of interest or accruing dividends at a floating dividend rate
shall be tested on the basis of the rates applicable at the time the
determination is made pursuant to said provisions; and


 


(iii)          in
making any determination of Consolidated EBITDA on a Pro  Forma
Basis, pro  forma effect shall be given to any Permitted
Acquisition or any Significant Asset Sale if effected during the respective
Calculation Period or Test Period (or thereafter, for determinations pursuant
to Sections 9.16, 10.03(iv), 10.04(vi) and 10.13(c) and the definitions of “Applicable
Annual Permitted Acquisition Basket Amount” and “Excluded Permitted Junior
Capital Amount” only) as if same had occurred on the first day of the
respective Calculation Period or Test Period, as the case may be, taking into
account, in the case of any Permitted Acquisition, factually supportable and
identifiable cost savings and expenses which would otherwise be accounted for
as an adjustment pursuant to Article 11 of Regulation S-X under the Securities
Act, as if such cost savings or expenses were realized on the first day of the
respective period.


 


“Projections” shall mean the projections that
are contained in the Confidential Information Memorandum dated November 2004
and that were prepared by or on behalf of the Borrower in connection with the
Transaction and delivered to the Administrative Agent and the Lenders prior to
the Effective Date.


 


“Qualified Preferred
Stock” shall mean any Preferred Equity of the Borrower which (x) provides
by its terms that Dividends thereon shall not be required to be paid in cash at
any time (and to the extent) that such payment would be prohibited by the terms
of this


 


25





















 


Agreement and (y) by its
terms (or the terms of any security into which it is convertible or for which
it is exchangeable) does not mature and does not contain any mandatory
redemption, put, repurchase, repayment, sinking fund or other similar provision
(including, without limitation, upon the occurrence of a “change of control
event” or a sale of all or substantially all of the assets of the Borrower and
its Subsidiaries) or any right on the part of the holder thereof to require the
repurchase or redemption thereof, in whole or in part, in any such case prior
to the date occurring one year after the Term Loan Maturity Date (or, in the
case (and only in the case) of a mandatory put or redemption upon the
occurrence of a “change of control event” or the sale of all or substantially
all the assets of the Borrower and its Subsidiaries or another asset sale, the
earlier to occur of (I) the date upon which all outstanding Term Loans,
interest and other Obligations owing hereunder shall have been repaid in full
in cash and all of Notes and Commitments shall have been terminated and (II)
the date on which the Borrower shall have obtained from the Required Lenders a
consent to such put or redemption).


 


“Qualified Preferred
Stock Documents” shall mean any Qualified Preferred Stock and any
certificate of designation or other agreement governing such Qualified
Preferred Stock, as the same may be amended, modified and/or supplemented from
time to time in accordance with the terms hereof and thereof.


 


“Quarterly Payment Date” shall mean the last
Business Day of each March, June, September and December occurring after the
Effective Date.


 


“Real Property” of any Person shall mean all
the right, title and interest of such Person in and to land, improvements and
fixtures, including Leaseholds.


 


“Recovery Event” shall mean the receipt by the
Borrower or any of its Subsidiaries of any cash insurance proceeds or
condemnation awards payable (i) by reason of theft, loss, physical destruction,
damage, taking or any other similar event with respect to any property or
assets of the Borrower or any of its Subsidiaries and (ii) under any policy of
insurance required to be maintained under Section 9.03.


 


“Register” shall have the meaning provided in
Section 13.15.


 


“Regulation D” shall mean Regulation D of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof establishing reserve
requirements.


 


“Regulation T” shall mean Regulation T of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Regulation U” shall mean Regulation U of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Regulation X” shall mean Regulation X of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


26





















 


“Release” shall mean actively or passively
disposing, discharging, injecting, spilling, pumping, leaking, leaching,
dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like,
into or upon any land or water or air, or otherwise entering into the
environment.


 


“Replaced Lender” shall have the meaning
provided in Section 2.13.


 


“Replacement Lender” shall have the meaning
provided in Section 2.13.


 


“Reportable Event” shall mean an event
described in Section 4043(c) of ERISA with respect to a Plan that is subject to
Title IV of ERISA other than those events as to which the 30-day notice period
is waived under subsection .22, .23, .25, .27, .28, .29, .30, .31, .32, .34 or
..35 of PBGC Regulation Section 4043.


 


“Required Lenders” shall mean, at any time,
Non-Defaulting Lenders the sum of whose Commitments at such time (or, after the
termination thereof, outstanding Term Loans at such time) represent at least
50.1% of the remainder of (x) the Total Commitment in effect at such time less
(y) the Commitments of all Defaulting Lenders at such time (or, after the
termination thereof, the sum of then total outstanding Term Loans of
Non-Defaulting Lenders at such time).


 


“Restricted” shall mean, when referring to cash
or Cash Equivalents of the Borrower or any of the Subsidiary Guarantors, that
such cash or Cash Equivalents (i) appears (or would be required to appear) as “restricted”
on a consolidated balance sheet of the Borrower or of any such Subsidiary
Guarantor (unless such appearance is related to the Credit Documents or Liens
created thereunder), (ii) are subject to any Lien in favor of any Person other
than the Collateral Agent for the benefit of the Secured Creditors or (iii) are
not otherwise generally available for use by the Borrower or such Subsidiary
Guarantor.


 


“Restricted Transaction” shall have the meaning
provided in Section 10.02.


 


“Restructuring Charges” shall mean
non-recurring and other one-time costs incurred by the Borrower in connection
with (i) lease terminations, facility closures and the consolidation,
relocation or elimination of operations and (ii) related severance costs and
other costs incurred in connection with the termination, relocation and
training of employees.


 


“Returns” shall have the meaning provided in
Section 8.09.


 


“S&P” shall mean Standard & Poor’s
Ratings Services, a division of McGraw Hill, Inc.


 


“Scheduled Existing Indebtedness” shall have
the meaning provided in Section 6.02(c).


 


“Scheduled Repayment” shall have the meaning
provided in Section 5.02(b).


 


“Scheduled Repayment Date” shall have the
meaning provided in Section 5.02(b).


 


27





















 


“SEC” shall have the meaning provided in
Section 9.01(h).


 


“Section 5.04(b)(ii) Certificate” shall have
the meaning provided in Section 5.04(b)(ii).


 


“Secured Creditors” shall have the meaning
assigned that term in the respective Security Documents.


 


“Securities Act” shall mean the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Security Agreement” shall have the meaning
provided in Section 7.10.


 


“Security Agreement Collateral” shall mean all “Collateral”
as defined in the Security Agreement.


 


“Security Document” shall mean and include each
of the Security Agreement, the Pledge Agreement, each Mortgage and, after the
execution and delivery thereof, each Additional Security Document.


 


“Senior Leverage Ratio” shall mean, on any date
of determination, the ratio of (x) Consolidated Senior Indebtedness on such
date to (y) Consolidated EBITDA for the Test Period most recently ended on or
prior to such date; provided that (i) for purposes of any calculation of
the Senior Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall
be determined on a Pro  Forma Basis in accordance with clause
(iii) of the definition of “Pro  Forma Basis” contained herein and
(ii) for purposes of any calculation of the Senior Leverage Ratio pursuant to
Sections 9.16, 10.03(iv), 10.04(vi) and 10.13(c) and the definitions of “Applicable
Annual Permitted Acquisition Basket Amount” and “Excluded Permitted Junior
Capital Amount”, Consolidated Senior Indebtedness shall be determined on a Pro
Forma Basis in accordance with the requirements of the definition of “Pro
Forma Basis” contained herein.


 


“Share Repurchase” shall have the meaning
provided in Section 9.14(a).


 


“Shareholder Subordinated Note” shall mean an
unsecured junior subordinated note issued by the Borrower (and not guaranteed
or supported in any way by the Borrower or any of its Subsidiaries) in the form
of Exhibit M.


 


“Shareholders’ Agreements” shall have the
meaning provided in Section 7.12(i).


 


“Significant Asset
Sale” shall mean each Asset Sale which generates Net Sale Proceeds of at
least $2,500,000.


 


“Subsidiaries Guaranty” shall have the meaning
provided in Section 7.08.


 


“Subsidiary” shall mean, as to any Person, (i)
any corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the


 


28





















 


happening of any
contingency) is at the time owned by such Person and/or one or more
Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.  Unless otherwise qualified, all references to
a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


“Subsidiary Guarantor” shall mean (i) each
Wholly-Owned Domestic Subsidiary of the Borrower on the Effective Date and (ii)
each Wholly-Owned Domestic Subsidiary of the Borrower established, created or
acquired after the Effective Date, unless and until such time as the respective
Subsidiary is released from all of its obligations under the Subsidiaries
Guaranty in accordance with the terms and provisions thereof.


 


“Supermajority Lenders”
shall mean those Non-Defaulting Lenders which would constitute the Required
Lenders under, and as defined in, this Agreement if the percentage “50.1%”
contained therein were changed to “662/3%.”


 


“Syndication Date” shall mean that date upon
which the Administrative Agent determines in its sole discretion (and notifies
the Borrower) that the primary syndication (and resultant addition of Persons
as Lenders pursuant to Section 13.04(b)) has been completed.


 


“Tax Benefit” shall have the meaning set
provided in Section 5.04(c).


 


“Taxes” shall have the meaning provided in
Section 5.04(a).


 


“Tender Offer”
have the meaning provided in Section 6.02(a).


 


“Tender Offer Account”
shall mean a deposit account designated by the Borrower and acceptable to the
Administrative Agent in which the cash to be utilized to make payments to the
Tender Offer Paying Agent for the purpose of financing the Share Repurchase is
to be deposited on the Borrowing Date and thereafter paid over to the Tender
Offer Paying Agent when and as required to make payments to the shareholders
whose shares are being repurchased pursuant to the Share Repurchase pursuant to
the Tender Offer Documents.


 


“Tender Offer
Adjustment Period” shall mean the 3 Business Day period following the
Borrowing Date (or such longer period as shall be acceptable to the
Administrative Agent in its sole discretion) during which the Borrower shall
calculate the payments to be made to the shareholders of the Borrower Common
Stock pursuant to the Share Repurchase (based on their respective shares
tendered pursuant to the Tender Offer) in accordance with the Tender Offer
Documents.


 


“Tender Offer
Documents” shall mean all of the agreements and documents governing, or
relating to, the Tender Offer and the Share Repurchase.


 


 


29





















 


“Tender Offer Paying
Agent” shall mean U.S. Stock Transfer Corporation and any successor
thereto.


 


“Term Loan” shall
have the meaning provided in Section 2.01.


 


“Test Period”
shall mean each period of four consecutive fiscal quarters then last ended, in
each case taken as one accounting period; provided that notwithstanding
anything to the contrary contained above or in Section 13.07 or otherwise
required by GAAP, in the case of any Test Period ending prior to the first
anniversary of the Effective Date, such period shall be a one-year period
ending on the last day of the fiscal quarter of the Borrower then last ended,
with any calculations of Fixed Charges and Consolidated EBITDA required in
determining compliance with the Fixed Charge Coverage Ratio, the Senior
Leverage Ratio or the Total Leverage Ratio, as the case may be, to be made on a
pro  forma basis in accordance with, and to the extent provided
in, the immediately succeeding sentence. 
To the extent the respective Test Period (i) includes the fiscal quarter
of the Borrower ended March 31, 2004, Fixed Charges and Consolidated EBITDA for
such fiscal quarter shall be deemed to be $13,435,000 and 27,572,000,
respectively, (ii) includes the fiscal quarter of the Borrower ended June 30,
2004, Fixed Charges and Consolidated EBITDA for such fiscal quarter shall be
deemed to be $15,492,000 and $31,123,000, respectively, (iii) includes the
fiscal quarter of the Borrower ended September 30, 2004, Fixed Charges and
Consolidated EBITDA for such fiscal quarter shall be deemed to be $18,640,000
and $33,499,000, respectively, and (iv) includes the fiscal quarter of the
Borrower ended December 31, 2004, Fixed Charges and Consolidated EBITDA for
such quarter shall be deemed to be $13,571,000 and $32,356,000, respectively, provided
that any additional adjustments to the foregoing amounts required by the
definition of Pro  Forma Basis for occurrences after the Borrowing
Date shall also be made.


 


“Third-Party Scheduled Existing Indebtedness”
shall have the meaning provided in Section 6.02(c).


 


“Total Commitment” shall mean, at any time, the
sum of the Commitments of each of the Lenders at such time.


 


“Total Leverage Ratio” shall mean, on any date
of determination, the ratio of (x) Consolidated Indebtedness on such date to
(y) Consolidated EBITDA for the Test Period most recently ended on or prior to
such date; provided that (i) for purposes of any calculation of the
Total Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall be
determined on a Pro  Forma Basis in accordance with clause (iii)
of the definition of “Pro  Forma Basis” contained herein and (ii)
for purposes of any calculation of the Total Leverage Ratio pursuant to
Sections 9.16, 10.03(iv), 10.04(vi) and 10.13(c) and the definitions of “Applicable
Annual Permitted Acquisition Basket Amount” and “Excluded Permitted Junior
Capital Amount”, Consolidated Indebtedness shall be determined on a Pro  Forma
Basis in accordance with the requirements of the definition of “Pro  Forma
Basis” contained herein.


 


30





















 


“Transaction” shall mean, collectively, (i) the
consummation of Tender Offer, (ii) the consummation of the Share Repurchase,
(iii) the entering into of the Credit Documents on the Effective Date and the
incurrence of Term Loans on the Borrowing Date and (iv) the payment of all fees
and expenses in connection with the foregoing.


 


“Type” shall mean the type of Term Loan
determined with regard to the interest option applicable thereto, i.e.,
whether a Base Rate Loan or a Eurodollar Loan.


 


“UCC” shall mean the Uniform Commercial Code as
from time to time in effect in the relevant jurisdiction.


 


“Unfunded Current Liability” of any Plan shall
mean the amount, if any, by which the value of the accumulated plan benefits
under the Plan determined on a plan termination basis in accordance with
actuarial assumptions at such time consistent with those prescribed by the PBGC
for purposes of Section 4044 of ERISA, exceeds the fair market value of all
plan assets allocable to such liabilities under Title IV of ERISA (excluding
any accrued but unpaid contributions).


 


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


 


“Unrestricted” shall mean, when referring to
cash or Cash Equivalents of the Borrower or any of its Subsidiaries, that such
cash or Cash Equivalents are not Restricted.


 


“Wholly-Owned Domestic Subsidiary” shall mean,
as to any Person, any Wholly-Owned Subsidiary of such Person which is a
Domestic Subsidiary.


 


“Wholly-Owned Foreign Subsidiary” shall mean,
as to any Person, any Wholly-Owned Subsidiary of such Person which is a Foreign
Subsidiary.


 


“Wholly-Owned Subsidiary” shall mean, as to any
Person, (i) any corporation 100% of whose capital stock (other than, in the
case of any Foreign Subsidiary, director’s qualifying shares and/or other
nominal amounts of shares required by applicable law to be held by Persons
other than such Person) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100%
Equity Interest at such time (other than, in the case of any Foreign
Subsidiary, director’s qualifying shares and/or other nominal amounts of shares
required by applicable law to be held by Persons other than such Person).


 


1.02.        Other
Definitional Provisions.  (a)  Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Credit Documents or any certificate or
other document made or delivered pursuant hereto or thereto.


 


(b)           As used
herein and in the other Credit Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms not defined
in Section 1.01 shall have the respective meanings given to them under GAAP,
(ii) the words “include”, “includes” and “including” shall be deemed to be
followed by the phrase “without limitation”, (iii) the word “incur” shall be
construed to mean incur, create, issue, assume, become


 


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liable in respect of or
suffer to exist (and the words “incurred” and “incurrence” shall have
correlative meanings), (iv) unless the context otherwise requires, the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, Equity Interests, securities, revenues, accounts, leasehold interests and
contract rights, (v) the word “will” shall be construed to have the same
meaning and effect as the word “shall”, and (vi) unless the context otherwise
requires, any reference herein (A) to any Person shall be construed to include
such Person’s successors and assigns and (B) to the Borrower or any other
Credit Party shall be construed to include the Borrower or such Credit Party as
debtor and debtor-in-possession and any receiver or trustee for the Borrower or
any other Credit Party, as the case may be, in any insolvency or liquidation
proceeding.


 


(c)           The words “hereof”,
“herein” and “hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references are
to this Agreement unless otherwise specified.


 


(d)           The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.


 


SECTION 2.           Amount
and Terms of Credit.


 


2.01.        The Commitments. 
Subject to and upon the terms and conditions set forth herein, each
Lender severally agrees to make a term loan (each, a “Term Loan” and,
collectively, the “Term Loans”) to the Borrower, which Term Loans (i)
shall be incurred pursuant to a single drawing on the Borrowing Date in an
aggregate principal amount of not less than $100,000,000, (ii) shall be
denominated in Dollars, (iii) except as hereinafter provided, shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Eurodollar Loans, provided that (A) except as
otherwise specifically provided in Section 2.10(b) and subject to Section 2.06,
all Term Loans comprising the same Borrowing shall at all times be of the same
Type, and (B) unless the Administrative
Agent has determined that the Syndication Date has occurred (at which time this
clause (B) shall no longer be applicable), no more than two Borrowings of Term
Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th
day after the Borrowing Date (or, if later, the last day of the Interest Period
applicable to the second Borrowing of Eurodollar Loans referred to below), each
of which Borrowings of Eurodollar Loans may only have an Interest Period of one
month, and the first of which Borrowings may be made no earlier than the third
Business Day, and no later than the seventh Business Day, after the Borrowing
Date and the second of which Borrowings may only be made on the last day of the
Interest Period of the first such Borrowing and (iv) shall be made by
each such Lender in that aggregate principal amount which does not exceed the
Commitment of such Lender on the Borrowing Date.  Once repaid, Term Loans incurred hereunder
may not be reborrowed.


 


2.02.        Minimum Amount of Each Borrowing.  The aggregate principal amount of each Borrowing
of Term Loans shall not be less than the Minimum Borrowing Amount.  More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than four Borrowings of
Eurodollar Loans.


 


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2.03.        Notice of Borrowing.  (a)  Whenever the Borrower desires
to incur (x) Eurodollar Loans hereunder, it shall give the Administrative Agent
at the Notice Office at least three Business Days’ prior notice of each
Eurodollar Loan to be incurred hereunder and (y) Base Rate Loans hereunder, it
shall give the Administrative Agent same day notice of each Base Rate Loan to
be incurred hereunder, provided that (in each case) any such notice
shall be deemed to have been given on a certain day only if given before 1:00
P.M. (New York time) on such day. 
Each such notice (each, a “Notice of Borrowing”), except as
otherwise expressly provided in Section 2.10, shall be irrevocable and shall be
in writing, or by telephone promptly confirmed in writing, in the form of
Exhibit A-1, appropriately completed to specify:  (i) the aggregate principal amount of the
Term Loans to be incurred pursuant to such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day) and (iii) whether the Term Loans being
incurred pursuant to such Borrowing are to be initially maintained as Base Rate
Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto.  The Administrative Agent shall promptly give
each Lender which is required to make Term Loans notice of such proposed
Borrowing, of such Lender’s proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.


 


(b)           Without in
any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice of any Borrowing or prepayment of Term Loans, the
Administrative Agent may act without liability upon the basis of telephonic
notice of such Borrowing or prepayment, as the case may be, believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower, prior to receipt of written confirmation.  In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent’s record of the terms of such
telephonic notice of such Borrowing or prepayment of Term Loans, as the case
may be, absent manifest error.


 


2.04.        Disbursement of Funds.  No later than 2:00 P.M. (New York time)
on the date specified in each Notice of Borrowing, each Lender will make
available its pro  rata portion (determined in accordance with
Section 2.07) of each such Borrowing requested to be made on such date.  All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will make available to the Borrower at the Payment Office
the aggregate of the amounts so made available by the Lenders.  Unless the Administrative Agent shall have
been notified by any Lender prior to the date of Borrowing that such Lender
does not intend to make available to the Administrative Agent such Lender’s
portion of any Borrowing to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing and the Administrative Agent may (but shall not
be obligated to), in reliance upon such assumption, make available to the
Borrower a corresponding amount.  If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent.  The Administrative Agent also
shall be entitled to recover on demand from such Lender or the Borrower, as the
case may be, interest on such corresponding amount in


 


33





















 


respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, the overnight Federal Funds
Rate for the first three days and at the interest rate otherwise applicable to
such Term Loans for each day thereafter and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 2.08. Nothing in this Section 2.04 shall be
deemed to relieve any Lender from its obligation to make Term Loans hereunder
or to prejudice any rights which the Borrower may have against any Lender as a
result of any failure by such Lender to make Term Loans hereunder.


 


2.05.        Notes.  (a)  The Borrower’s obligation to pay the principal
of, and interest on, the Term Loans made by each Lender shall be evidenced in
the Register maintained by the Administrative Agent pursuant to Section 13.15
and shall, if requested by such Lender, also be evidenced by a promissory note
duly executed and delivered by the Borrower substantially in the form of
Exhibit B, with blanks appropriately completed in conformity herewith (each, a “Note”
and, collectively, the “Notes”).


 


(b)           The Note
issued to each Lender shall (i) be executed by the Borrower, (ii) be payable to
such Lender or its registered assigns and be dated the Borrowing Date (or, if
issued after the Borrowing Date, be dated the date of issuance thereof), (iii)
be in a stated principal amount equal to the Term Loan made by such Lender on the
Borrowing Date (or, if issued after the Borrowing Date, be in a stated
principal amount equal to the outstanding Term Loan of such Lender at such
time) and be payable in the outstanding principal amount of the Term Loan
evidenced thereby, (iv) mature on the Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 2.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 5.01, and mandatory
repayment as provided in Section 5.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.


 


(c)           Each
Lender will note on its internal records the amount of each Term Loan made by
it and each payment in respect thereof and prior to any transfer of any of its
Notes will endorse on the reverse side thereof the outstanding principal amount
of Term Loans evidenced thereby.  Failure
to make any such notation or any error in such notation shall not affect the
Borrower’s obligations in respect of such Term Loans.


 


(d)           Notwithstanding
anything to the contrary contained above in this Section 2.05 or elsewhere in
this Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes.  No failure of any Lender to request or obtain
a Note evidencing its Term Loans to the Borrower shall affect or in any manner
impair the obligations of the Borrower to pay the Term Loans (and all related
Obligations) incurred by the Borrower which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents.  Any Lender
which does not have a Note evidencing its outstanding Term Loans shall in no
event be required to make the notations otherwise described in preceding clause
(c).  At any time when any Lender
requests the delivery of a Note to evidence any of its Term Loans, the Borrower
shall promptly execute and deliver to the


 


34





















 


respective Lender the requested Note in the
appropriate amount or amounts to evidence such Term Loans.


 


2.06.        Conversions. 
The Borrower shall have the option to convert, on any Business Day, all
or a portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Term Loans made pursuant to one or more Borrowings of one
or more Types of Term Loans into a Borrowing of another Type of Term Loan, provided
that, (i) except as otherwise provided in Section 2.10(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Term Loans being converted and no such partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if a Default or Event of Default is in existence on the
date of the conversion and the Administrative Agent (on behalf of the Required
Lenders) has given written notice that no such conversion is permitted while
such Default or Event of Default is continuing, (iii) unless the Administrative Agent has determined that the Syndication
Date has occurred (at which time this clause (iii) shall no longer be
applicable), prior to the 60th day after the Borrowing Date, conversions of
Base Rate Loans into Eurodollar Loans may only be made if any such conversion
is effective on the first day of the first or second Interest Period referred
to in clause (B) of the proviso appearing in Section 2.01(iii) and so long as
such conversion does not result in a greater number of Borrowings of Eurodollar
Loans prior to the 60th day after the Borrowing Date as are permitted under
Sections 2.01(iii), and (iv) no conversion pursuant to this Section 2.06
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 2.02.  Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at the Notice Office prior to 1:00 P.M. (New York time) at least (x) in the
case of conversions of Base Rate Loans into Eurodollar Loans, three Business
Days’ prior notice and (y) in the case of conversions of Eurodollar Loans into
Base Rate Loans, one Business Day’s prior notice (each, a “Notice of
Conversion/Continuation”) in the form of Exhibit A-2, appropriately
completed to specify the Term Loans to be so converted, the Borrowing or
Borrowings pursuant to which such Term Loans were incurred and, if to be
converted into Eurodollar Loans, the Interest Period to be initially applicable
thereto.  The Administrative Agent shall
give each Lender prompt notice of any such proposed conversion affecting any of
its Term Loans.


 


2.07.        Pro Rata Borrowings.  All Borrowings of Term Loans under this
Agreement shall be incurred from the Lenders pro  rata on the
basis of their Commitments.  It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Term Loans hereunder and that each Lender
shall be obligated to make the Term Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Term Loans hereunder.


 


2.08.        Interest.  (a)  The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date of
Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) the conversion of such Base Rate Loan to a
Eurodollar Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per
annum which shall be equal to the sum of the relevant Applicable Margin plus
the Base Rate, each as in effect from time to time.


 


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(b)           The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Loan from the date of Borrowing thereof until the earlier of
(i) the maturity thereof (whether by acceleration or otherwise) and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
2.06, 2.09 or 2.10, as applicable, at a rate per annum which shall, during each
Interest Period applicable thereto, be equal to the sum of the relevant
Applicable Margin as in effect from time to time during such Interest Period plus
the Eurodollar Rate for such Interest Period.


 


(c)           Overdue
principal and interest shall bear interest at a rate per annum equal to the
rate which is 2% in excess of the rate then borne by Term Loans.  All other overdue amounts payable hereunder
and under any other Credit Document shall bear interest at a rate per annum
equal to the rate which is 2% in excess of the rate applicable to Term Loans
that are maintained at Base Rate Loans from time to time.  Interest that accrues under this Section
2.08(c) shall be payable on demand.


 


(d)           Accrued
(and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, (y) on the
date of any repayment or prepayment in full of all outstanding Base Rate Loans,
and (z) at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand, and (ii) in respect of each Eurodollar Loan, (x) on the
last day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three
month intervals after the first day of such Interest Period, and (y) on the
date of any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.


 


(e)           Upon each
Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective
Eurodollar Loans and shall promptly notify the Borrower and the Lenders
thereof.  Each such determination shall,
absent manifest error, be final and conclusive and binding on all parties
hereto.


 


2.09.        Interest Periods.  At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest
Period applicable thereto) or prior to 1:00 P.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to such
Eurodollar Loan (in the case of any subsequent Interest Period), the Borrower
shall have the right to elect the interest period (each, an “Interest Period”)
applicable to such Eurodollar Loan, which Interest Period shall, at the option
of the Borrower (but otherwise subject to the provisions of clause (B) of the
proviso of Section 2.01(iii)), be a one, two, three, six or, to the extent
approved by each Lender, nine or twelve month period, provided that (in
each case):


 


(i)            all
Eurodollar Loans comprising a Borrowing shall at all times have the same
Interest Period;


 


(ii)           the
initial Interest Period for any Eurodollar Loan shall commence on the date of
Borrowing of such Eurodollar Loan (including the date of any conversion thereto
from a Base Rate Loan) and each Interest Period occurring thereafter in respect
of such


 


36





















 


Eurodollar Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires;


 


(iii)          if
any Interest Period for a Eurodollar Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such
calendar month;


 


(iv)          if
any Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, however, that if any Interest Period for
a Eurodollar Loan would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day;


 


(v)           unless
the Required Lenders otherwise agree, no Interest Period may be selected at any
time when a Default or an Event of Default has occurred and is continuing;


 


(vi)          no
Interest Period in respect of any Borrowing of Term Loans shall be selected
which extends beyond the Maturity Date; and


 


(vii)         no
Interest Period in respect of any Borrowing of Term Loans shall be selected
which extends beyond any date upon which a mandatory repayment of Term Loans
will be required to be made under Section 5.02(b) if the aggregate principal
amount of the Term Loans which have Interest Periods which will expire after
such date will be in excess of the aggregate principal amount of the Term Loans
then outstanding less the aggregate amount of such required repayment.


 


If by 1:00 P.M. (New York time) on the third Business
Day prior to the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.


 


2.10.        Increased Costs, Illegality, etc.  (a)  In
the event that any Lender shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto but, with respect to clause (i) below, may be made only by the
Administrative Agent):


 


(i)            on
any Interest Determination Date that, by reason of any changes arising after
the date of this Agreement affecting the interbank Eurodollar market, adequate
and fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Eurodollar Rate; or


 


(ii)           at
any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loan
because of (x) any change since the Effective Date in any applicable law or
governmental


 


37





















 


rule, regulation, order, guideline or request (whether or not having
the force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
order, guideline or request, such as, but not limited to:  (A) a change in the basis of taxation of
payment to any Lender of the principal of or interest on the Term Loans or the
Notes or any other amounts payable hereunder (except for changes in the rate of
tax on, or determined by reference to, the net income or net profits of such
Lender pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or any
subdivision thereof or therein and Taxes covered by Section 5.04) or (B) a
change in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances arising since the Effective Date
affecting such Lender, the interbank Eurodollar market or the position of such
Lender in such market; or


 


(iii)          at
any time, that the making or continuance of any Eurodollar Loan has been made
(x) unlawful by any law or governmental rule, regulation or order, (y)
impossible by compliance by any Lender in good faith with any governmental
request (whether or not having force of law) or (z) impracticable as a result
of a contingency occurring after the Effective Date which materially and
adversely affects the interbank Eurodollar market;


 


then, and in any such event, such Lender (or the
Administrative Agent, in the case of clause (i) above) shall promptly give
notice (by telephone promptly confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders).  Thereafter
(x) in the case of clause (i) above, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees, subject to the provisions of Section 13.18 (to the extent
applicable), to pay to such Lender, upon such Lender’s written request
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as shall be required to compensate such Lender
for such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Lender, showing in
reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent manifest error, be final and conclusive
and binding on all the parties hereto) and (z) in the case of clause (iii)
above, the Borrower shall take one of the actions specified in Section 2.10(b)
as promptly as possible and, in any event, within the time period required by
applicable law.


 


(b)           At any
time that any Eurodollar Loan is affected by the circumstances described in
Section 2.10(a)(ii), the Borrower may, and in the case of a Eurodollar Loan
affected by the circumstances described in Section 2.10(a)(iii), the Borrower
shall, either (x) if the affected Eurodollar Loan is then being made initially
or pursuant to a conversion, cancel such Borrowing by giving the Administrative
Agent telephonic notice (confirmed in writing) on the


 


38





















 


same date that the Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or
(iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least
one Business Day’s written notice to the Administrative Agent, require the
affected Lender to convert such Eurodollar Loan into a Base Rate Loan, provided
that, if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 2.10(b).


 


(c)           If any
Lender determines that after the Effective Date the introduction of or any
change in any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the force of law)
concerning capital adequacy, or any change in interpretation or administration
thereof by the NAIC or any governmental authority, central bank or comparable
agency, will have the effect of reducing the rate of return on such Lender’s or
any corporation controlling such Lender’s capital or assets as a consequence of
such Lender’s Commitment or its obligations hereunder to the Borrower to a
level below that which such Lender or such other corporation could have
achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Lender’s or such corporation’s policies with respect to
capital adequacy), then from time to time, upon written demand by such Lender
(with a copy to the Administrative Agent), the Borrower agrees, subject to the
provisions of Section 13.18 (to the extent applicable), to pay to such
Lender such additional amount or amounts as will compensate such Lender or such
other corporation for such reduction in the rate of return to such Lender or
such other corporation.  In determining
such additional amounts, each Lender will act reasonably and in good faith and
will use averaging and attribution methods which are reasonable, provided
that such Lender’s determination of compensation owing under this Section
2.10(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto.  Each Lender, upon
determining that any additional amounts will be payable pursuant to this
Section 2.10(c), will give prompt written notice thereof to the Borrower, which
notice shall show in reasonable detail the basis for calculation of such
additional amounts.


 


2.11.        Compensation. 
The Borrower agrees, subject to the provisions of Section 13.18 (to the
extent applicable), to compensate each Lender, upon its written request (which
request shall set forth in reasonable detail the basis for requesting such
compensation), for all losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its Eurodollar Loans but excluding loss of anticipated profits) which
such Lender may sustain:  (i) if for any
reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 2.10(a)); (ii) if any prepayment or repayment
(including any prepayment or repayment made pursuant to Section 5.01, Section
5.02 or as a result of an acceleration of the Term Loans pursuant to Section
10) or conversion of any of its Eurodollar Loans occurs on a date which is not
the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in
a notice of prepayment given by the Borrower; or (iv) as a consequence of (x)
any other default by the Borrower to repay Eurodollar Loans when required by
the terms of this Agreement or any Note held by such Lender or (y) any election
made pursuant to Section 2.10(b).


 


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2.12.        Change of Lending Office.  Each Lender agrees that on the occurrence of
any event giving rise to the operation of Section 2.10(a)(ii) or (iii),
Section 2.10(c) or Section 5.04 with respect to such Lender, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Term
Loans affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section.  Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Sections 2.10 and 5.04.


 


2.13.        Replacement of Lenders.  (x)  If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Term Loans,
(y) upon the occurrence of an event giving rise to the operation of Section
2.10(a)(ii) or (iii), Section 2.10(c) or Section 5.04 with respect to any
Lender which results in such Lender charging to the Borrower increased costs in
excess of those being generally charged by the other Lenders or (z) in the case
of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders as (and to the extent) provided in Section
13.12(b), the Borrower shall have the right, if no Default or Event of Default
then exists (or, in the case of preceding clause (z), will exist immediately
after giving effect to such replacement), to replace such Lender (the “Replaced
Lender”) with one or more other Eligible Transferees, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the “Replacement Lender”) and each of whom shall be required to be
reasonably acceptable to the Administrative Agent, provided that (i) at
the time of any replacement pursuant to this Section 2.13, the Replacement
Lender shall enter into one or more Assignment and Assumption Agreements
pursuant to Section 13.04(b) (and with all fees payable pursuant to said
Section 13.04(b) to be paid by the Replacement Lender and/or the Replaced
Lender (as may be agreed to at such time by and among the Borrower, the
Replacement Lender and the Replaced Lender)) pursuant to which the Replacement
Lender shall acquire all of the Commitments and outstanding Term Loans of the
Replaced Lender and, in connection therewith, shall pay to the Replaced Lender
in respect thereof an amount equal to the sum of (I) an amount equal to the
principal of, and all accrued interest on, all outstanding Term Loans of the
Replaced Lender and (II) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Lender pursuant to Section 4.01 and (ii) all
obligations of the Borrower due and owing to the Replaced Lender at such time
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon receipt by the Replaced Lender of all amounts required to be
paid to it pursuant to this Section 2.13, the Administrative Agent shall be
entitled (but not obligated) and authorized to execute an Assignment and
Assumption Agreement on behalf of such Replaced Lender, and any such Assignment
and Assumption Agreement so executed by the Administrative Agent and the
Replacement Lender shall be effective for purposes of this Section 2.13 and
Section 13.04.  Upon the execution of the
respective Assignment and Assumption Agreement, the payment of amounts referred
to in clauses (i) and (ii) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of an appropriate Note or Notes
executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this


 


40





















 


Agreement (including, without limitation, Sections 2.10, 2.11, 5.04,
12.06 and 13.01), which shall survive as to such Replaced Lender.


 


SECTION 3.           [Reserved].


 


SECTION 4.           Fees;
Reductions of Commitment.


 


4.01.        Fees.  The Borrower
agrees to pay to the Administrative Agent such fees as may be agreed to in
writing from time to time by the Borrower and the Administrative Agent.


 


4.02.        Voluntary Termination of Commitments.  Upon at least one Business Day’s prior
written notice to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, at any time or from time to time, without
premium or penalty, to terminate the Total Commitment in whole, or reduce it in
part, pursuant to this Section 4.02, in an integral multiple of $1,000,000 in
the case of partial reductions to the Total Commitment, provided that
each such reduction shall apply proportionately to permanently reduce the Commitment
of each Lender.


 


4.03.        Mandatory Reduction of Commitments.  (a)  The Total Commitment (and the
Commitment of each Lender) shall terminate in its entirety on the earlier to
occur of (i) December 31, 2004 and (ii) the tenth Business Day following the Effective
Date (in either case, after giving effect to the incurrence of any Term Loans
on such date).


 


(b)           In
addition to any other mandatory commitment reductions pursuant to this Section
4.03, the Total Commitment (and the Commitment of each Lender) shall terminate
in its entirety on the Borrowing Date (after giving effect to the incurrence of
Term Loans on such date).


 


(c)           In addition to any other mandatory commitment
reductions pursuant to this Section 4.03, the Total Commitment shall be reduced
from time to time to the extent required by Section 5.02.


 


(d)           Each
reduction to, or termination of, the Total Commitment pursuant to this Section
4.03 shall be applied to proportionately reduce or terminate, as the case may
be, the Commitment of each Lender.


 


SECTION 5.           Prepayments;
Payments; Taxes.


 


5.01.        Voluntary Prepayments. (a)  The
Borrower shall have the right to prepay the Term Loans, without premium or
penalty, in whole or in part at any time and from time to time on the following
terms and conditions:  (i) the Borrower
shall give the Administrative Agent prior to 1:00 P.M. (New York time) at
the Notice Office (x) at least one Business Day’s prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans and (y) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, which notice (in each case) shall specify the amount of such
prepayment and the Types of Term Loans to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which such
Eurodollar Loans were made, and which notice the Administrative Agent shall
promptly


 


41





















 


transmit to each of the Lenders; (ii) each partial prepayment of Term
Loans pursuant to this Section 5.01(a) shall be in an aggregate principal
amount of at least $1,000,000 (or such lesser amount as is acceptable to the
Administrative Agent in any given case), provided that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto,
then such Borrowing may not be continued as a Borrowing of Eurodollar Loans
(and same shall automatically be converted into a Borrowing of Base Rate Loans)
and any election of an Interest Period with respect thereto given by the
Borrower shall have no force or effect; (iii) each prepayment pursuant to this
Section 5.01(a) in respect of any Term Loans made pursuant to a Borrowing shall
be applied pro  rata among such Term Loans; and (iv) each
prepayment of Term Loans pursuant to this Section 5.01(a) shall reduce the then
remaining Scheduled Repayments on a pro  rata basis (based upon
the then remaining principal amount of each such Scheduled Repayment after
giving effect to all prior reductions thereto).


 


(b)           In the
event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders as (and to the extent) provided in Section
13.12(b), the Borrower may, at any time after the Borrowing Date, upon two
Business Days’ prior written notice to the Administrative Agent at the Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Lenders) repay all Term Loans, together with accrued and unpaid
interest, Fees, and other amounts owing to such Lender in accordance with, and
subject to the requirements of, said Section 13.12(b) so long as the
consents, if any, required under Section 13.12(b) in connection with the
repayment pursuant to this clause (b) have been obtained.  Each prepayment of the Term Loans pursuant to
this Section 5.01(b) shall reduce the then remaining Scheduled Repayments on a pro
rata basis (based upon the then remaining principal amount of each such
Scheduled Repayment after giving effect to all prior reductions thereto).


 


5.02.        Mandatory Repayments, etc..  (a)   [Reserved].


 


(b)           In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date set forth below (each, a “Scheduled Repayment Date”), the
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite each such date below (each
such repayment, as the same may be reduced as provided in Section 5.01(a),
5.01(b) or 5.02(h), a “Scheduled Repayment”):


 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended March 31, 2005

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended June 30, 2005

  	
   

  	
  $

  	
  8,750,000

  	
   

  



 


42





















 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended September 30, 2005

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended December 31, 2005

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended March 31, 2006

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended June 30, 2006

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended September 30, 2006

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended December 31, 2006

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended March 31, 2007

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended June 30, 2007

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended September 30, 2007

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended December 31, 2007

  	
   

  	
  $

  	
  8,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended March 31, 2008

  	
   

  	
  $

  	
  11,250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended June 30, 2008

  	
   

  	
  $

  	
  11,250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last
  Business Day of the Borrower’s fiscal quarter ended September 30, 2008

  	
   

  	
  $

  	
  11,250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Maturity Date

  	
   

  	
  $

  	
  11,250,000

  	
   

  



 


In the event that less
than $150,000,000 in aggregate principal amount of Term Loans have been
incurred on the Borrowing Date, the Scheduled Repayments shall be reduced on a pro
rata basis (based upon the then remaining principal amount of such
Scheduled Repayments after giving


 


43





















 


effect to all prior
reductions thereto) by an amount equal to the remainder of $150,000,000 less
the aggregate principal amount of the Term Loans incurred on the Borrowing
Date.


 


(c)           In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date on or after the Borrowing Date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any capital contribution or any
sale or issuance of its Equity Interests (other than (w) cash proceeds from an
issuance of Permitted Disqualified Preferred Stock pursuant to Section 10.13(c),
to the extent that the gross cash proceeds therefrom, when aggregated with the
gross cash proceeds of (i) all other issuances of Permitted Disqualified
Preferred Stock pursuant to Section 10.13(c) after the Effective Date and (ii)
all issuances of Permitted Subordinated Notes pursuant to Section 10.04(vi)
after the Effective Date, do not exceed the Excluded Permitted Junior Capital
Amount as then in effect, (x) sales or issuances of Equity Interests to the
Borrower or any Subsidiary of the Borrower by any Subsidiary of the Borrower,
(y) sales or issuances of Borrower Common Stock to management of the Borrower
and its Subsidiaries (including as a result of the exercise of any options with
respect thereto) in an aggregate amount not to exceed $500,000 in any fiscal
year of the Borrower and (z) cash capital contributions to any Subsidiary of
the Borrower by the Borrower or any Subsidiary of the Borrower), an amount
equal to the Applicable Prepayment Percentage of the Net Cash Proceeds of such
capital contribution or sale or issuance of Equity Interests shall be applied
on such date as a mandatory repayment of Term Loans in accordance with the
requirements of Sections 5.02(h) and (i). 
Notwithstanding anything to the contrary contained in this
Section 5.02(c), so long as no Default or Event of Default shall have
occurred and be continuing, no mandatory repayment shall be required pursuant
to this Section 5.02(c) until the date on which the sum of (x) the Net
Cash Proceeds required to be applied as mandatory repayments in the absence of
this sentence plus (y) the Net Sale Proceeds required to be applied as
mandatory repayments pursuant to Section 5.02(e) in the absence of the
last sentence in said Section plus (z) the Net Cash Proceeds required to
be applied as mandatory repayments and/or commitment reductions pursuant to
Section 5.02(g) in the absence of the last sentence in said Section,
equals or exceeds $2,500,000.


 


(d)           In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date on or after the Borrowing Date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any issuance or incurrence by the
Borrower or any of its Subsidiaries of Indebtedness (other than (x)
Indebtedness permitted to be incurred pursuant to Section 10.04 (other than
clause (vi) thereof) as in effect on the Effective Date and (y) cash proceeds
from an issuance of Permitted Subordinated Notes pursuant to Section 10.04(vi),
to the extent that the gross cash proceeds therefrom, when aggregated with the
gross cash proceeds of (i) all other issuances of Permitted Subordinated Notes
pursuant to Section 10.04(vi) after the Effective Date and (ii) all issuances
of Permitted Disqualified Preferred Stock pursuant to Section 10.13(c) after
the Effective Date, do not exceed the Excluded Permitted Junior Capital Amount
as then in effect), an amount equal to 100% of the Net Cash Proceeds of the
respective incurrence of Indebtedness shall be applied on such date as a
mandatory repayment of Term Loans in accordance with the requirements of
Sections 5.02(h) and (i).


 


(e)           In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date on or after the Borrowing Date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any Asset Sale, an amount equal to
100% of the


 


44





















 


Net Sale Proceeds therefrom shall be applied on such date as a
mandatory repayment of Term Loans in accordance with the requirements of
Sections 5.02(h) and (i); provided, however, that with respect to
no more than $2,500,000 in the aggregate of such Net Sale Proceeds received by
the Borrower or its Subsidiaries in any fiscal year of the Borrower, such Net
Sale Proceeds shall not be required to be so applied on such date so long as no
Default and no Event of Default then exists and such Net Sale Proceeds shall be
used to purchase assets (other than inventory and working capital) used or to
be used in a Permitted Business within 360 days following the date of such
Asset Sale, and provided further, that if all or any portion of such Net
Sale Proceeds not required to be so applied as provided above in this Section
5.02(e) are not so reinvested within such 360-day period (or such earlier date,
if any, as the Borrower or the relevant Subsidiary determines not to reinvest
the Net Sale Proceeds from such Asset Sale as set forth above), such remaining
portion shall be applied on the last day of such period (or such earlier date,
as the case may be) as provided above in this Section 5.02(e) without regard to
the immediately preceding proviso.  
Notwithstanding the foregoing provisions of this Section 5.02(e),
so long as no Default or Event of Default shall have occurred and be
continuing, no mandatory repayment shall be required pursuant to this
Section 5.02(e) until the date on which the sum of (x) the Net Sale Proceeds
required to be applied as mandatory repayments in the absence of this sentence plus
(y) the Net Cash Proceeds required to be applied as mandatory repayments and/or
commitment reductions pursuant to Sections 5.02(c) and (g) in the absence
of the last sentences in respective such Sections, equals or exceeds
$2,500,000.


 


(f)            In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each Excess Cash Payment Date, an amount equal to 50% of the Excess Cash Flow
for the related Excess Cash Payment Period shall be applied as a mandatory
repayment of Term Loans in accordance with the requirements of Sections 5.02(h)
and (i).


 


(g)           In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date on or after the Effective Date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any Recovery Event (other than
Recovery Events where the Net Cash Proceeds therefrom do not exceed $500,000),
an amount equal to 100% of the Net Cash Proceeds from such Recovery Event shall
be applied on such date as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 5.02(h) and (i); provided, however,
that with respect to no more than $2,500,000 in the aggregate of such Net Cash
Proceeds received by the Borrower or its Subsidiaries in any fiscal year of the
Borrower, such Net Cash Proceeds shall not be required to be so applied on such
date so long as no Default and no Event of Default then exists and the Borrower
has delivered a certificate to the Administrative Agent on such date stating
that such Net Cash Proceeds shall be used to replace or restore any properties
or assets in respect of which such Net Cash Proceeds were paid within 360 days
following the date of the receipt of such Net Cash Proceeds (which certificate
shall set forth the estimates of the Net Cash Proceeds to be so expended), and provided
further, that if all or any portion of such Net Cash Proceeds not required
to be so applied pursuant to the preceding proviso are not so used within 360
days after the date of the receipt of such Net Cash Proceeds (or such earlier
date, if any, as the Borrower or the relevant Subsidiary determines not to
reinvest the Net Cash Proceeds relating to such Recovery Event as set forth
above), such remaining portion shall be applied on the last day of such period
(or such earlier date, as the case may be) as provided above in this Section
5.02(g) without regard to the immediately preceding proviso.  Notwithstanding the foregoing provisions of
this Section 5.02(g), so long as no Default or Event 


 


45





















 


of Default shall have occurred and be continuing, no mandatory
repayment or commitment reduction shall be required pursuant to this
Section 5.02(g) until the date on which the sum of (x) the Net Cash
Proceeds required to be applied as mandatory repayments and/or commitment
reductions in the absence of this sentence plus (y) the Net Cash
Proceeds required to be applied as mandatory repayments pursuant to
Section 5.02(c) in the absence of the last sentence in said Section plus
(z) the Net Sale Proceeds required to be applied as mandatory repayments
pursuant to Section 5.02(e) in the absence of the last sentence of said
Section, equals or exceeds $2,500,000.


 


(h)           Each
amount required to be applied pursuant to Sections 5.02(c), (d), (e), (f) and
(j) in accordance with this Section 5.02(h) shall be applied to repay the
outstanding principal amount of Term Loans. 
Each amount required to be applied pursuant to Section 5.02(g) in
accordance with this Section 5.02(h) shall be applied (i) at any time prior to
the termination of the Total Commitment pursuant to Section 4.03, to reduce the
Total Commitment in the manner provided in Section 4.03(d) (it being understood
and agreed that the amount of any reduction to the Total Commitment as provided
in this clause (i) shall be deemed to be an application of proceeds for
purposes of this Section 5.02(h) even though cash is not actually applied) and
(ii) thereafter, to repay the outstanding principal amount of Term Loans.  The amount of each principal repayment of
Term Loans made as required by Sections 5.02(c), (d), (e), (f), (g) and (j)
shall be applied to reduce the then remaining Scheduled Repayments in inverse
order of maturity (based upon the then remaining principal amounts of the
Scheduled Repayments after giving effect to all prior reductions thereto); provided,
however, that so long as no Default or Event of Default has occurred and
is continuing, if at the time of the respective repayment of Term Loans the
Senior Leverage Ratio is less than 1.0:1.0 (as set forth in the officer’s
certificate delivered pursuant to Section 9.01(f) for the fiscal quarter or
fiscal year of the Borrower then last ended for which financial statements are
available), such principal repayment of Term Loans shall be applied to reduce
the then remaining Scheduled Repayments on a pro  rata basis
(based upon the then remaining amounts of such Scheduled Repayments after
giving effect to all prior reductions thereto).


 


(i)            With
respect to each repayment of Term Loans required by this Section 5.02, the
Borrower may designate the Types of Term Loans which are to be repaid and, in
the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to
which such Eurodollar Loans were made, provided that:  (i) repayments of Eurodollar Loans pursuant
to this Section 5.02 may only be made on the last day of an Interest Period
applicable thereto unless all Eurodollar Loans with Interest Periods ending on
such date of required repayment and all Base Rate Loans have been paid in full;
(ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto, such
Borrowing shall be automatically converted into a Borrowing of Base Rate Loans;
and (iii) each repayment of any Term Loans made pursuant to a Borrowing shall
be applied pro  rata among such Term Loans.  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its sole discretion.


 


(j)            In
addition to any other mandatory repayments pursuant to this Section 5.02, on
the 5th Business Day following the Borrowing Date (or such later
date following the Borrowing Date as shall be acceptable to the Administrative
Agent in its sole discretion), an amount equal to the remainder 


 


46





















 


(if positive) of (i) the aggregate principal amount of Term Loans
incurred on the Borrowing Date less (ii) $100,000,000 less (iii)
the aggregate amount of cash used by the Borrower to finance the Share Repurchase
and pay related Transaction expenses, shall be applied as a mandatory repayment
of Term Loans in accordance with the requirements of Sections 5.02(h) and (i).


 


(k)           In
addition to any other mandatory repayments pursuant to this Section 5.02, (i)
all then outstanding Term Loans shall be repaid in full on the Maturity Date
and (ii) unless the Required Lenders otherwise agree in writing, all then
outstanding Term Loans shall be repaid in full on the date on which a Change of
Control occurs.


 


5.03.        Method
and Place of Payment.  Except as otherwise specifically provided
herein, all payments under this Agreement and under any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 1:00 P.M. (New York time) on the date when due and
shall be made in Dollars in immediately available funds at the Payment
Office.  Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.


 


5.04.        Net Payments.  (a)  All payments made by the
Borrower hereunder and under any Note will be made without setoff, counterclaim
or other defense.  Except as provided in
Section 5.04(b), all such payments will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding, except as
provided in the second succeeding sentence, any branch profits tax, any tax
imposed on or measured by the net income or net profits (or franchise tax
imposed in lieu thereof) of a Lender pursuant to the laws of the jurisdiction
in which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect to
such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as “Taxes”).  If any Taxes are so levied or imposed, the
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein or in such
Note.  If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender pursuant
to the laws of the jurisdiction in which such Lender is organized or in which
the principal office or applicable lending office of such Lender is located or
under the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located and for any withholding
of taxes as such Lender shall determine are payable by, or withheld from, such
Lender, in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or on
behalf of such Lender pursuant to this sentence.  The Borrower will furnish to the
Administrative Agent within 45 days after the date the payment of any Taxes is 


 


47





















 


due pursuant to applicable law
certified copies of tax receipts or other evidence reasonably acceptable to the
Administrative Agent of such payment by such Borrower.  The Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Lender.


 


(b)           Each
Lender that is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for U.S. Federal income tax purposes agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date or, in
the case of a Lender that is an assignee or transferee of an interest under
this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective
Lender was already a Lender hereunder immediately prior to such assignment or
transfer), on the date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue Service Form
W8ECI or Form W8BEN (with respect to a complete exemption under an income tax
treaty) (or successor forms) certifying to such Lender’s entitlement as of such
date to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either Internal Revenue Service Form W8ECI or Form W8BEN
(with respect to a complete exemption under an income tax treaty) (or any
successor forms) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit C (any such certificate, a “Section
5.04(b)(ii) Certificate”) and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W8BEN (with respect to the
portfolio interest exemption) (or successor form) certifying to such Lender’s
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note.  In
addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, such Lender will
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form W8ECI, Form
W8BEN (with respect to the benefits of any income tax treaty), or Form W8BEN
(with respect to the portfolio interest exemption) and a Section 5.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or such Lender shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver
any such Form or Certificate, in which case such Lender shall not be required
to deliver any such Form or Certificate pursuant to this Section 5.04(b).  Notwithstanding anything to the contrary
contained in Section 5.04(a), but subject to Section 13.04(b) and the immediately
succeeding sentence, (x) the Borrower shall be entitled, to the extent it
is required to do so by law (including, without limitation, any treaty of the
United States), to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, Fees or other amounts payable hereunder for the account
of any Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal Revenue
Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section
5.04(a) to pay additional amounts to a Lender in respect of income (gross or
net) or similar taxes imposed by the United States if (I) such Lender has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to 


 


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the Borrower pursuant to this Section 5.04(b) or (II) in the case of a
payment, other than interest, to a Lender described in clause (ii) above, to
the extent that such forms do not establish a complete exemption from
withholding of such taxes. 
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 5.04 and except as set forth in Section
13.04(b), the Borrower agrees to pay any additional amounts and to indemnify
each Lender in the manner set forth in Section 5.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.


 


(c)           If the
Borrower pays any additional amount under this Section 5.04 to a Lender and
such Lender determines in its sole discretion that it has actually received or
realized in connection therewith any refund or any reduction of, or credit
against, its Tax liabilities in or with respect to the taxable year in which
the additional amount is paid (a “Tax Benefit”), such Lender shall pay
to the Borrower an amount that the Lender shall, in its sole discretion,
determine is equal to the net benefit, after tax, which was obtained by the
Lender in such year as a consequence of such Tax Benefit; provided, however,
that (i) any Lender may determine, in its sole discretion consistent with the
policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes that are
imposed on a Lender as a result of a disallowance or reduction (including
through the expiration of any tax credit carryover or carryback of such Lender
that otherwise would not have expired) of any Tax Benefit with respect to which
such Lender has made a payment to the Borrower pursuant to this Section 5.04(c)
shall be treated as a Tax for which the Borrower is obligated to indemnify such
Lender pursuant to this Section 5.04 without any exclusions or defenses; (iii)
nothing in this Section 5.04(c) shall require the Lender to disclose any
confidential information to the Borrower (including, without limitation, its
tax returns); and (iv) no Lender shall be required to pay any amounts pursuant
to this Section 5.04(c) at any time which a Default or Event of Default exists.


 


(d)           The
provisions of this Section 5.04 are subject to the provisions of Section 13.18
(to the extent applicable).


 


SECTION 6.           Conditions Precedent to the Occurrence of the Effective Date.  This Agreement shall become effective on the
date (the “Effective Date”) upon which each of the following conditions
shall have been satisfied:


 


6.01.        Execution
Date.  The
Execution Date shall have occurred as provided in Section 13.10.


 


6.02.        Commencement
of Tender Offer; Existing Indebtedness.  (a) 
The Borrower shall have commenced a tender offer with respect to the
Borrower Common Stock (the “Tender Offer”), pursuant to the terms which
(as amended) the Borrower shall have offered, subject to the terms and
conditions contained in the Tender Offer Documents, to repurchase approximately
14,285,714 shares of outstanding Borrower Common Stock from existing
shareholders of the Borrower on the terms contemplated by the Tender Offer
Documents.


 


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(b)           There shall have been delivered to the
Administrative Agent true and correct copies of the Tender Offer Documents as
in effect on the Effective Date, and all terms and conditions thereof shall be
in form and substance reasonably satisfactory to the Administrative Agent and
the Required Lenders.  All of the Tender
Offer Documents shall be in full force and effect.


 


(c)           On the
Effective Date and after giving effect to the consummation of the Transaction
and the other transactions contemplated hereby (as if same had been consummated
on the Effective Date), the Borrower and its Subsidiaries shall have no
outstanding Preferred Equity or Indebtedness, except for (i) Indebtedness
pursuant to or in respect of the Credit Documents, (ii) the Existing Letters of
Credit in an aggregate stated amount not to exceed $3,450,000, (iii) certain
Intercompany Debt listed on Part A of Schedule V and existing on the date
specified therein in an aggregate outstanding principal amount not to exceed
$33,000,000 (with the Indebtedness described in this sub-clause (iii) being
herein called the “Intercompany Scheduled Existing Indebtedness”), (iv)
certain other Indebtedness owing to Persons other than the Borrower or any of
its Subsidiaries listed on Part B of Schedule V and existing on the date
specified therein in an aggregate outstanding principal amount not to exceed
$1,500,000 (with the Indebtedness described in this sub-clause (iv) being
herein called the “Third-Party Scheduled Existing Indebtedness” and,
together with the Intercompany Scheduled Existing Indebtedness, the “Scheduled
Existing Indebtedness”) and (v) certain other Indebtedness otherwise
permitted by Section 10.04 which does not constitute third-party debt for
borrowed money (with the Indebtedness described in this sub-clause (v), the
Existing Letters of Credit and the Scheduled Existing Indebtedness being herein
collectively called the “Existing Indebtedness”).  On and as of the Effective Date, all of the
Existing Indebtedness shall remain outstanding after giving effect to the
Transaction and the other transactions contemplated hereby (as if same had been
consummated on the Effective Date) without any breach, required repayment,
required offer to purchase, default, event of default or termination rights
existing thereunder or arising as a result of the Transaction and the other
transactions contemplated hereby.


 


6.03.        Adverse
Change, Approvals.  (a)  Since
December 31, 2003, nothing shall have occurred (and neither the Administrative
Agent nor any Lender shall have become aware of any facts or conditions not
previously known) which the Administrative Agent or the Required Lenders shall
reasonably determine has had, or could reasonably be expected to have, (i) a
Material Adverse Effect or (ii) a material adverse effect on the Transaction.


 


(b)           All
necessary governmental (domestic and foreign) and third party approvals and/or
consents in connection with this Agreement and the other Credit Documents shall
have been obtained and remain in effect. 
On the Effective Date, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the Transaction or the other
transactions contemplated by the Credit Documents.


 


6.04.        Litigation.  There shall be no actions,
suits or proceedings pending or threatened by any entity (private or
governmental) (i) with respect to the Transaction, this Agreement or any other
Document, or (ii) which the Administrative Agent or the Required Lenders shall
determine has had, or could reasonably be expected to have, a Material Adverse
Effect.


 


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6.05.        Financial
Statements; Pro Forma Financial Statements; Projections.  The Administrative Agent shall have received
true and correct copies of the historical financial statements, the pro  forma
balance sheet and the Projections referred to in Sections 8.05(a) and (d),
which historical financial statements, pro  forma balance sheet and
Projections shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.


 


6.06.        Fees, etc.  On
the Effective Date, the Borrower shall have paid to the Administrative Agent
and each Lender all costs, fees and expenses (including, without limitation,
legal fees and expenses) and other compensation contemplated hereby payable to
the Administrative Agent or such Lender to the extent then due.


 


6.07.        No Default;
Representations and Warranties. 
On the Effective Date and immediately after giving effect thereto and to
the entering into of this Agreement, (i) there shall exist no Default or Event
of Default and (ii) all representations and warranties contained herein shall
be true and correct in all material respects with the same effect as though
such representations and warranties had been made on such date (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).


 


The occurrence of the Effective Date and the
acceptance of the benefits thereof by the Borrower shall constitute a
representation and warranty by the Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in this Section 6 are
satisfied as of that time.  All of the
documents and papers referred to in this Section 6, unless otherwise specified,
shall have been delivered to the Administrative Agent at the Notice Office for
the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders.


 


SECTION 7.           Conditions Precedent to Incurrence of Term Loans on the
Borrowing Date.  The
obligation of each Lender to make Term Loans on the Borrowing Date is subject
at the time of the making of such Term Loans to the satisfaction of the
following conditions:


 


7.01.        Effective
Date; Notes.  On or prior to the
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each of the
Lenders that has requested same the appropriate Note executed by the Borrower,
in each case in the amount, maturity and as otherwise provided herein.


 


7.02.        Officer’s
Certificate.  On the Borrowing Date,
the Administrative Agent shall have received a certificate, dated the Borrowing
Date and signed on behalf of the Borrower by the Chairman of the Board, the
Chief Executive Officer, the President, the Treasurer, the Chief Financial
Officer or any Vice President of the Borrower, certifying on behalf of the
Borrower that all of the conditions in Sections 7.05, 7.06, 7.07, 7.13 and 7.14
have been satisfied on such date.


 


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7.03.        Opinions
of Counsel.  The Administrative Agent
shall have received (i) from Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Credit Parties, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders and dated
the Borrowing Date, in form, scope and substance reasonably satisfactory to the
Administrative Agent, and (ii) from Washington counsel reasonably acceptable to
the Administrative Agent, special counsel to Classmates Online, an opinion, in
form and substance reasonably satisfactory to the Administrative Agent,
addressed to the Administrative Agent and each of the Lenders and dated the
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.


 


7.04.        Company
Documents; Proceedings; etc.  (a)  The
Administrative Agent shall have received a certificate from each Credit Party,
dated the Borrowing Date, signed by the Chairman of the Board, the Chief
Executive Officer, the President, the Treasurer, the Chief Financial Officer or
any Vice President of such Credit Party, and attested to by the Secretary or
any Assistant Secretary of such Credit Party, in the form of Exhibit E with
appropriate insertions, together with copies of the certificate or articles of
incorporation and by-laws (or other equivalent organizational documents), as
applicable, of such Credit Party and the resolutions of such Credit Party
referred to in such certificate, and each of the foregoing shall be in form and
substance reasonably acceptable to the Administrative Agent.


 


(b)           All
Company and legal proceedings and all instruments and agreements in connection
with the transactions contemplated by this Agreement and the other Credit
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
Company proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper Company or governmental
authorities.


 


7.05.        Cash on
Hand.  On the Borrowing Date
(immediately prior to the incurrence of Term Loans on such date), the Borrower
and its Subsidiaries shall have Unrestricted cash and Cash Equivalents on hand
(exclusive of $25.0 million of Unrestricted cash and Cash Equivalents required
to be reserved for liquidity requirements pursuant to Section 10.16) equal to
at least $50.0 million.


 


7.06.        Adverse
Change, Approvals.  (a)  Since
December 31, 2003, nothing shall have occurred which has had, or could
reasonably be expected to have, (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.


 


(b)           On or
prior to the Borrowing Date, all necessary governmental (domestic and foreign)
and third party approvals and/or consents in connection with the Transaction,
the other transactions contemplated hereby and the granting of Liens under the
Credit Documents shall have been obtained and remain in effect.  On the Borrowing Date, there shall not exist any judgment, order, injunction or other restraint
issued or filed or a hearing seeking injunctive relief or other restraint
pending or notified prohibiting or imposing materially adverse conditions upon
the Transaction or the other transactions contemplated by the Documents.


 


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7.07.        Litigation.  On
the Borrowing Date, there shall be no actions, suits or proceedings pending or
threatened by any entity (private or governmental) (i) with respect to the
Transaction, this Agreement or any other Document, or (ii) which has had, or
could reasonably be expected to have, a Material Adverse Effect.


 


7.08.        Subsidiaries
Guaranty.  Each Subsidiary Guarantor
shall have duly authorized, executed and delivered the Subsidiaries Guaranty
(as amended, modified or supplemented from time to time, the “Subsidiaries
Guaranty”) in the form of Exhibit F (with such modifications thereto as
shall be reasonably acceptable to the Administrative Agent), and the
Subsidiaries Guaranty shall be in full force and effect.


 


7.09.        Pledge
Agreement.   Each Credit Party
shall have duly authorized, executed and delivered the Pledge Agreement (as
amended, modified, restated and/or supplemented from time to time, the “Pledge
Agreement”) in the form of Exhibit G (with such modifications thereto as
shall be reasonably acceptable to the Administrative Agent) and shall have
delivered to the Collateral Agent, as Pledgee thereunder, all of the Pledge
Agreement Collateral, if any, referred to therein and then owned by such Credit
Party, (x) endorsed in blank in the case of promissory notes constituting
Pledge Agreement Collateral and (y) together with executed and undated
endorsements for transfer in the case of equity interests constituting
certificated Pledge Agreement Collateral, along with evidence that all other
actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the
Pledge Agreement have been taken and the Pledge Agreement shall be in full
force and effect.


 


7.10.        Security
Agreement.  Each Credit Party shall
have duly authorized, executed and delivered the Security Agreement (as
amended, modified, restated and/or supplemented from time to time, the “Security
Agreement”) in the form of Exhibit H (with such modifications thereto as
shall be reasonably acceptable to the Administrative Agent), covering all of
such Credit Party’s Security Agreement Collateral, together with:


 


(i)            financing statements (Form UCC-1 or the
equivalent) in proper form for filing in the appropriate filing offices under
the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Collateral Agent, desirable, to
perfect the security interests purported to be created by the Security
Agreement;


 


(ii)           certified copies of requests for information or copies (Form UCC-11),
or equivalent reports as of a recent date, listing all effective financing
statements that name the Borrower or any of its Subsidiaries as debtor and that
are filed in the jurisdictions referred to in clause (i) above and in such
other jurisdictions in which Collateral is located on the Effective Date,
together with copies of such other financing statements that name the Borrower
or any of its Subsidiaries as debtor (none of which shall cover any of the
Collateral except (x) to the extent evidencing Permitted Liens or (y) those in
respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall be
required by local law fully executed for filing);


 


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(iii)          evidence of the completion of all other recordings and filings of, or
with respect to, the Security Agreement as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the security
interests intended to be created by the Security Agreement; and


 


(iv)          evidence that all other actions necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect and protect the security interests
purported to be created by the Security Agreement have been taken, and the
Security Agreement shall be in full force and effect.


 


7.11.        Solvency Certificate; Insurance Certificates.  The Administrative Agent shall have received:


 


(i)            a solvency certificate from the chief financial officer of the Borrower
in the form of Exhibit I hereto (with such modifications thereto as shall be
reasonably acceptable to the Administrative Agent); and


 


(ii)           certificates of insurance complying with the requirements of Section
9.03 for the business and properties of the Borrower and its Subsidiaries, in
form and substance reasonably satisfactory to the Lenders and naming the
Collateral Agent as an additional insured and/or as loss payee, and stating
that such insurance shall not be canceled without at least 30 days’ prior
written notice by the insurer to the Collateral Agent.


 


7.12.        Shareholders’
Agreements; Existing Indebtedness Agreements.  There shall have been delivered to the
Administrative Agent true and correct copies of the following documents,
certified as such by an Authorized Officer of the Borrower:


 


(i)            all agreements entered into by the Borrower or any of its Subsidiaries
governing the terms and relative rights of Equity Interests of Subsidiaries of
the Borrower (collectively, the “Shareholders’ Agreements”); and


 


(ii)           all agreements evidencing or relating to Indebtedness of the Borrower
or any of its Subsidiaries having an outstanding principal amount in excess of
$750,000 which is to remain outstanding after giving effect to the Transaction
(as if same had been consummated on the Effective Date) (the “Existing
Indebtedness Agreements”);


 


all
of which Shareholders’ Agreements and Existing Indebtedness Agreements shall be
in form and substance reasonably satisfactory to the Administrative Agent and
shall be in full force and effect on the Effective Date.


 


7.13.        Fees, etc.  On
the Borrowing Date, the Borrower shall have paid to the Administrative Agent
and each Lender all costs, fees and expenses (including, without limitation,
legal fees and expenses) and other compensation contemplated hereby payable to
the Administrative Agent or such Lender to the extent then due.


 


7.14.        No Default;
Representations and Warranties. 
On the Borrowing Date and immediately after giving effect thereto, (i)
there shall exist no Default or Event of Default and 


 


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(ii) all representations and warranties contained herein and in the
other Credit Documents shall be true and correct in all material respects with
the same effect as though such representations and warranties had been made on
the date of the making of Term Loans (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).


 


7.15.        Notice
of Borrowing. 
Prior to the making of each Term Loan, the Administrative Agent shall
have received a Notice of Borrowing meeting the requirements of Section
2.03(a).


 


7.16.        Credit
Ratings. 
The ratings (actual or implied) assigned to the Term Loans by (i) S&P
shall not be less than B+ (or the equivalent) and (ii) Moody’s shall not be
less than B1 (or the equivalent).


 


The occurrence of the Borrowing Date and the
acceptance of the benefits of the making of the Term Loans on such date shall
constitute a representation and warranty by the Borrower to the Administrative
Agent and each of the Lenders that all the conditions specified in this Section
7 are satisfied as of that time.  All of
the Notes, certificates and other documents and papers referred to in this Section
7, unless otherwise specified, shall have been delivered to the Administrative
Agent at the Notice Office for the account of each of the Lenders and in
sufficient counterparts or copies for each of the Lenders and shall be in form
and substance reasonably satisfactory to the Administrative Agent.


 


SECTION 8.           Representations, Warranties and Agreements.  In order to induce the Lenders to enter into
this Agreement and to make the Term Loans, the Borrower makes the following
representations, warranties and agreements on (x) the Effective Date (after
giving effect to the Transaction (as if same had been consummated on the
Effective Date)) and (y) the Borrowing Date (after giving effect to the
Transaction (as if each element of the same had been consummated on the
Effective Date)), all of which shall survive the execution and delivery of this
Agreement and the Notes and the incurrence of the Term Loans, with the
occurrence of the Effective Date or the Borrowing Date, as the case may be,
being deemed to constitute a representation and warranty that the matters
specified in this Section 8 are true and correct in all material respects on
and as of the Effective Date or the Borrowing Date, as the case may be (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).


 


8.01.        Company
Status. 
Each of the Borrower and each of its Subsidiaries (i) is a duly organized
and validly existing Company in good standing under the laws of the
jurisdiction of its organization, (ii) has the Company power and authority, as
the case may be, to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications except for failures to be
so qualified or authorized which, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.


 


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8.02.        Power and
Authority.  Each Credit Party
has the Company power and authority to execute, deliver and perform the terms
and provisions of each of the Documents to which it is party and has taken all
necessary Company action, as the case may be, to authorize the execution,
delivery and performance by it of each of such Documents.  Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such
Documents constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors’ rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law),
it being understood that, in the event this representation is being made prior
to the Borrowing Date, such representation is made only as to this Agreement
(and not to any other Credit Document).


 


8.03.        No Violation.  Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, (i) will contravene any
material provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the property or assets
of any Credit Party or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument, in each case to which any
Credit Party or any of its Subsidiaries is a party or by which it or any its
property or assets is bound or to which it may be subject, or (iii) will
violate any provision of the certificate or articles of incorporation,
certificate of formation, limited liability company agreement or by-laws (or
equivalent organizational documents), as applicable, of any Credit Party or any
of its Subsidiaries.


 


8.04.        Approvals.  No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for (x) those that have otherwise been obtained or made on or prior to
the Effective Date and which remain in full force and effect on such date and
(y) in the event the representations in this Section 8.04 are being made on the
Effective Date, consents, approvals and authorizations of holders of Borrower
Common Stock and of the SEC and filings which are necessary to consummate the
Tender Offer in accordance with applicable law), or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to be obtained or made by, or on behalf of, any Credit Party to
authorize, or is required to be obtained or made by, or on behalf of, any
Credit Party in connection with, (i) the execution, delivery and performance of
any Document or (ii) the legality, validity, binding effect or enforceability
of any such Document.


 


8.05.        Financial Statements; Financial
Condition; Undisclosed Liabilities; Projections.  (a) 
(i) (I) The audited consolidated balance sheet of the Borrower and its
Subsidiaries at December
31, 2003, June 30, 2003 and June 30, 2002, and the related consolidated
statements of income and cash flows and changes in shareholders’ equity of the
Borrower and its Subsidiaries for the six months ended December 31, 2003 and
for each of the fiscal years of the Borrower ended June 30, 2003, June 30, 2002
and June 30, 2001, in each case furnished to the Lenders prior to the
Effective Date, present fairly in all material respects the 


 


56





















 


consolidated financial position of the Borrower and its Subsidiaries at
the date of said financial statements and the results for the respective
periods covered thereby, and (II) the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries at September 30, 2004 and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the nine-month period ended on such date, furnished to the
Lenders prior to the Effective Date, present fairly in all material respects
the consolidated financial condition of the Borrower and its Subsidiaries at
the date of said financial statements and the results for the period covered
thereby, subject to normal year-end adjustments and the absence of
footnotes.  All such financial statements
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements and subject, in the
case of the unaudited financial statements, to normal year-end audit
adjustments and the absence of footnotes.


 


(ii)           The pro
forma consolidated balance sheet of the Borrower and its Subsidiaries as
of September 30, 2004 (after giving effect to the Transaction and the financing
therefor and the Classmates Acquisition), a copy of which has been furnished to
the Lenders prior to the Effective Date, presents a good faith estimate of the pro
forma consolidated financial position of the Borrower and its
Subsidiaries as of such date (subject to the assumptions set forth therein,
including, without limitation, assumptions with respect to the number of shares
of Borrower Common Stock repurchased and the amount of Term Loans incurred in
connection with the Transaction).


 


(b)           On the
Borrowing Date, after giving effect to any Indebtedness (including the Term
Loans) being incurred or assumed and Liens created by the Credit Parties in
connection therewith, (i) the sum of the assets, at a fair valuation, of the
Borrower (on a stand-alone basis) and of the Borrower and its Subsidiaries
(taken as a whole) will exceed its or their respective debts, (ii) the Borrower
(on a stand-alone basis) and the Borrower and its Subsidiaries (taken as a
whole) has or have not incurred and does or do not intend to incur, and does or
do not believe that it or they will incur, debts beyond its or their respective
ability to pay such debts as such debts mature, and (iii) the Borrower (on
a stand-alone basis) and the Borrower and its Subsidiaries (taken as a whole)
will have sufficient capital with which to conduct its or their respective
businesses.  For purposes of this Section
8.05(b), “debt” means any liability on a claim, and “claim” means
(a) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (b) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.  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.


 


(c)           Except as
fully disclosed in the financial statements delivered pursuant to Section
8.05(a), there were as of each of the Effective Date and the Borrowing Date no
liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.  As of each of the Effective Date and the
Borrowing Date, the Borrower does not know of any basis for the assertion
against it or any of its Subsidiaries of any liability or obligation of any


 


57





















 


nature whatsoever that is not fully disclosed in the financial
statements delivered pursuant to Section 8.05(a) or referred to in the
immediately preceding sentence which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


(d)           The
Projections delivered to the Administrative Agent prior to the Effective Date
have been prepared in good faith and are based on reasonable assumptions under
the then known facts and circumstances. 
On each of the Effective Date and the Borrowing Date, the Borrower
believes that the Projections are reasonable and attainable based upon the then
known facts and circumstances, it being recognized by the Lenders, however,
that projections as to future events are not to be viewed as facts and that the
actual results during the period or periods covered by the Projections may
differ from the projected results and the Projections are based on many
assumptions and contingencies that are not within the control of the Borrower
or its Subsidiaries.


 


(e)           Since
December 31, 2003 (but after giving effect to the Transaction), nothing has
occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect.


 


8.06.        Litigation.  There are no actions, suits or proceedings
pending or, to the knowledge of the Borrower, threatened (i) with respect to
the Transaction or any Document or (ii) that has had, or could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.


 


8.07.        True and
Complete Disclosure.  All
factual information (taken as a whole) furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender (including,
without limitation, all information contained in the Documents and all public
filings made by any Credit Party with the SEC) for purposes of or in connection
with this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender will not contain a material misstatement on
the date as of which such information is dated or certified (or if not dated or
certified, as of the date such information was furnished) which makes such
information misleading in any material respect at such time in light of the
circumstances under which such information was provided and will not be
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided, it being
understood and agreed that for purposes of this Section 8.07, such factual
information shall not include the Projections or any pro  forma
financial information.


 


8.08.        Use of
Proceeds; Margin Regulations. 
(a)  All proceeds of the Term
Loans will be used by the Borrower solely (i) first, on the Borrowing
Date, (x) to fund the Tender Offer Account (so long as such proceeds are
thereafter paid over to the Tender Offer Paying Agent and applied to finance,
in part, the Share Repurchase and/or, upon the termination of the Tender Offer
Adjustment Period, thereafter applied as provided in clause (ii) below and/or
Section 5.02(j)) and (y) to pay fees and expenses incurred in connection with
the Transaction and (ii) second, for other general corporate purposes
(including, without limitation, to finance Permitted Acquisitions and the
repurchase of Equity Interests of the Borrower permitted by 


 


58





















 


Section 10.03(iv)); provided that no more than $100,000,000 of
proceeds of the Term Loans may be used for the purposes described in preceding
clause (ii) (it being understood that, upon the termination of the Tender Offer
Adjustment Period, the proceeds of Term Loans in the Tender Offer Account may
be withdrawn and shall be available to be applied by the Borrower as provided
above for the purposes described in preceding clause (ii)).


 


(b)           Except as
otherwise permitted by Section 10.03(iii) and (iv), no part of any Term Loans
(or the proceeds thereof) will be used to purchase or carry any Margin Stock or
to extend credit for the purpose of purchasing or carrying any Margin
Stock.  Neither the making of any Term
Loan nor the use of the proceeds thereof will violate or be inconsistent with
the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.


 


8.09.        Tax Returns
and Payments.  Each of the
Borrower and each of its Subsidiaries has timely filed or caused to be timely
filed with the appropriate taxing authority all material federal and state
income tax returns and all other material tax returns, domestic and foreign
(the “Returns”) required to be filed by, or with respect to the income,
properties or operations of, the Borrower and/or any of its Subsidiaries.  The Returns accurately reflect in all
material respects all liability for taxes of the Borrower and its Subsidiaries,
as applicable, for the periods covered thereby. 
Each of the Borrower and each of its
Subsidiaries has paid all taxes and assessments payable by it which have become
due, other than those the validity or amount of which are being contested in
good faith and adequately disclosed and fully provided for on the financial
statements of the Borrower and its Subsidiaries in accordance with GAAP.  There is no material action, suit,
proceeding, investigation, audit or claim now pending or, to the best knowledge
of the Borrower, threatened by any authority regarding any taxes relating to
the Borrower or any of its Subsidiaries. Except as set forth on the Schedule XIII,
neither the Borrower nor any of its Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of the
Borrower or any of its Subsidiaries, or is aware of any circumstances that
would cause the taxable years or other taxable periods of the Borrower or any
of its Subsidiaries not to be subject to the normally applicable statute of
limitations.  Except as set forth on
Schedule XIII, neither the Borrower nor any of its Subsidiaries has incurred,
nor will any of them incur, any material tax liability in connection with the
Transaction or any other transactions contemplated hereby (it being understood
that the representation contained in this sentence does not cover any future
tax liabilities of the Borrower or any of its Subsidiaries arising as a result
of the operation of their businesses in the ordinary course of business).


 


8.10.        Compliance
with ERISA. 
(a)  Schedule IV sets forth each
Plan as of the Effective Date; each Plan (and each related trust, insurance
contract or fund) is in compliance with its terms and with all applicable laws,
including without limitation ERISA and the Code (except to the extent such
failure to comply could not reasonably be expected to have a Material Adverse
Effect); each Plan (and each related trust, if any) which is intended to be
qualified under Section 401(a) of the Code has received a determination letter
from the Internal Revenue Service to the effect that such Plan, in form, meets
the requirements of Sections 401(a) of the Code; no Reportable Event has
occurred that could reasonably be expected to have a Material Adverse Effect;
no Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of
ERISA) is insolvent or in reorganization (except to the extent such insolvency
or reorganization could not reasonably be expected to have a Material Adverse
Effect); no Plan has an Unfunded Current 


 


59





















 


Liability that could reasonably be expected to have a Material Adverse
Effect; no Plan which is subject to Section 412 of the Code or Section 302 of
ERISA has an accumulated funding deficiency, within the meaning of such
sections of the Code or ERISA, or has applied for or received a waiver of an
accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA
(except to the extent any such accumulated funding deficiency or extension of
amortization period could not reasonably be expected to have a Material Adverse
Effect); all contributions required to be made with respect to a Plan have been
timely made (except to the extent failure to timely make such contributions
could not reasonably be expected to have a Material Adverse Effect); neither
the Borrower nor any Subsidiary of the Borrower nor any ERISA Affiliate has
incurred any liability that could reasonably be expected to have a Material
Adverse Effect (including any indirect, contingent or secondary liability) to
or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; no condition exists which presents
a risk to the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate
of incurring a liability that could reasonably be expected to have a Material
Adverse Effect to or on account of a Plan pursuant to the foregoing provisions
of ERISA and the Code; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of ERISA
that could reasonably be expected to have a Material Adverse Effect; no action,
suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, expected or threatened that could
reasonably be expected to have a Material Adverse Effect; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its Subsidiaries
and its ERISA Affiliates to all Plans which are multiemployer plans (as defined
in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the Borrowing Date, could not reasonably be expected to have a
Material Adverse Effect; each group health plan (as defined in Section 607(1)
of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered
employees or former employees of the Borrower, any Subsidiary of the Borrower,
or any ERISA Affiliate has at all times been operated in compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code (except to the extent such failure to comply could not reasonably be
expected to have a Material Adverse Effect); each group health plan (as defined
in 45 Code of Federal Regulations Section 160.103) which covers or has covered
employees or former employees of the Borrower, any Subsidiary of the Borrower,
or any ERISA Affiliate has at all times been operated in compliance with the
provisions of the Health Insurance Portability and Accountability Act of 1996
and the regulations promulgated thereunder (except to the extent such failure
to comply could not reasonably be expected to have Material Adverse Effect); no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to arise
on account of any Plan (except liens that could not reasonably be expected to
have Material Adverse Effect); and the Borrower and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any liability that could reasonably be expected to have
a Material Adverse Effect.


 


(b)           Each
Foreign Pension Plan has been maintained in compliance with its terms and with
the requirements of any and all applicable laws, statutes, rules, regulations
and 


 


60





















 


orders (except to the extent
failure to comply could not reasonably be expected to have a Material Adverse
Effect) and has been maintained, where required, in good standing with
applicable regulatory authorities (except to the extent failure to maintain
such good standing could not reasonably be expected to have a Material Adverse
Effect).  All contributions required to
be made with respect to a Foreign Pension Plan have been timely made(except to the extent failure to timely make such
contributions could not reasonably be expected to have a Material Adverse
Effect).  Neither the Borrower nor any of
its Subsidiaries has incurred any obligation in connection with the termination
of, or withdrawal from, any Foreign Pension Plan (except obligations that could
not reasonably be expected to have a Material Adverse Effect).  The present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension Plan, determined
as of the end of the Borrower’s most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Foreign Pension Plan allocable to such benefit
liabilities by an amount that could reasonably be expected to have a Material
Adverse Effect.


 


8.11.        Security
Documents.  (a)  On
and after the execution and delivery of the Security Agreement, the provisions
thereof are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security interest
in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, has (or, when financing statements on Form
UCC-1 and other filings and control agreements required under the Security
Agreement in appropriate form are filed in the appropriate offices of
governmental authorities or executed and delivered, as applicable, will have) a
fully perfected security interest in all right, title and interest in all of
the Security Agreement Collateral described therein, subject to no other Liens
other than Permitted Liens (except as set forth below with respect to U.S.
Patents, U.S. Trademarks and U.S. Copyrights). 
The recordation of (x) the Grant of Security Interest in U.S. Patents
and (y) the Grant of Security Interest in U.S. Trademarks in the respective
form attached to the Security Agreement, in each case in the United States
Patent and Trademark Office, together with filings on Form UCC-1 made pursuant
to the Security Agreement, will create, as may be perfected by such filings and
recordation, a perfected security interest in the United States trademarks and
patents covered by the Security Agreement, and the recordation of the Grant of
Security Interest in U.S. Copyrights in the form attached to the Security
Agreement with the United States Copyright Office, together with filings on
Form UCC-1 made pursuant to the Security Agreement, will create, as may be
perfected by such filings and recordation, a perfected security interest in the
United States copyrights covered by the Security Agreement.


 


(b)           On and
after the execution and delivery of the Pledge Agreement, the security
interests created thereunder in favor of the Collateral Agent, as Pledgee, for
the benefit of the Secured Creditors, constitute perfected security interests
in the Pledge Agreement Collateral described in the Pledge Agreement, subject
to no security interests of any other Person (other than Permitted Liens).  No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security
interests created in the Pledge Agreement Collateral under the Pledge Agreement
other than with respect to that portion of the Pledge Agreement Collateral constituting
a “general intangible” under the UCC.


 


8.12.        Properties.  All Real Property owned or leased by the
Borrower or any of its Subsidiaries as of the Effective Date, and the nature of
the interest therein, is correctly set 


 


61





















 


forth in Schedule III.  Each of the Borrower and each of its
Subsidiaries has good and marketable title to all material properties (and to
all buildings, fixtures and improvements located thereon) owned by it, including
all material property reflected in the most recent historical balance sheets
referred to in Section 8.05(a) (except as sold or otherwise disposed of since
the date of such balance sheet in the ordinary course of business or as
permitted by the terms of this Agreement), free and clear of all Liens, other
than Permitted Liens.  Each of the Borrower and each of its Subsidiaries has a valid leasehold
interest in the properties leased by it free and clear of all Liens other than
Permitted Liens.


 


8.13.        Capitalization.  On
the Effective Date, the authorized capital stock of the Borrower consists of
300,000,000 shares of common stock, par value $0.0001 per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of the Borrower, the “Borrower Common Stock”), 61,105,839
of which shares were issued and outstanding on November 30, 2004 prior to the
consummation of the Share Repurchase, and 5,000,000 shares of preferred stock,
par value $0.0001 per share, none of which shares are issued and outstanding on
the Effective Date.  All such outstanding
shares have been duly and validly issued, are fully paid and nonassessable and
have been issued free of preemptive rights. 
As of November 30, 2004, except as set forth on Schedule XI hereto, the
Borrower does not have outstanding any capital stock or other securities
convertible into or exchangeable for its capital stock or any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock.


 


8.14.        Subsidiaries.  As of the Effective Date, the Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule IX.  Schedule IX correctly sets forth as of the
Effective Date (after giving effect to the Classmates Acquisition, if
consummated on the Effective Date) the percentage ownership (direct and
indirect) of the Borrower in each class of capital stock or other Equity
Interests of each of its Subsidiaries and also identifies the direct owner
thereof.  All outstanding shares of
Equity Interests of each Subsidiary of the Borrower have been duly and validly
issued, are fully paid and non-assessable and have been issued free of
preemptive rights.  As of the Effective
Date, except as set forth on Schedule IX, no Subsidiary of the Borrower has
outstanding any securities convertible into or exchangeable for its Equity
Interests or outstanding any right to subscribe for or to purchase, or any
options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of
any character relating to, its Equity Interests or any stock appreciation or
similar rights.


 


8.15.        Compliance with Statutes, etc.  Each of the Borrower and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all applicable
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including, without limitation,
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), except such noncompliances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


8.16.        Investment
Company Act. 
Neither the Borrower nor any of its Subsidiaries is an “investment
company” or a company “controlled” by a company required to be 


 


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registered as an “investment
company,” within the meaning of the Investment Company Act of 1940, as amended.


 


8.17.        Public
Utility Holdings Company Act.  Neither the Borrower nor any of its
Subsidiaries is a “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company” within the meaning of the Public Utility Holdings
Company Act of 1935, as amended.


 


8.18.        Environmental
Matters.  (a)  Except as
could not reasonably be expected to have a Material Adverse Effect: (i) each of
the Borrower and each of its Subsidiaries is in compliance with all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws; (ii) there are no pending or, to the knowledge of the
Borrower, threatened Environmental Claims against any currently owned Real
Property or against the Borrower or any of its Subsidiaries (including any such
claim against the Borrower or any of its Subsidiaries arising out of the
ownership, lease or operation by the Borrower or any of its Subsidiaries of any
Real Property formerly owned, leased or operated by the Borrower or any of its
Subsidiaries but no longer owned, leased or operated by the Borrower or any of
its Subsidiaries); (iii) there are no facts, circumstances, conditions or
occurrences with respect to the business or operations of the Borrower or any
of its Subsidiaries, or any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries (including any Real Property formerly
owned, leased or operated by the Borrower or any of its Subsidiaries but no
longer owned, leased or operated by the Borrower or any of its Subsidiaries)
that could be reasonably expected (x) to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any Real Property
currently owned by the Borrower or any of its Subsidiaries or (y) to cause any
Real Property currently owned by the Borrower or any of its Subsidiaries to be
subject to any restrictions on the ownership, lease, occupancy or
transferability of such Real Property by the Borrower or any of its
Subsidiaries under any applicable Environmental Law.


 


(b)           Except as
could not reasonably be expected to have a Material Adverse Effect, Hazardous
Materials have not at any time been generated, used, treated or stored on, or
transported to or from, or Released on or from, any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries where such generation,
use, treatment, storage, transportation or Release could be reasonably expected
to give rise to an Environmental Claim.


 


8.19.        Employment
and Labor Relations.  Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected, either individually or in the aggregate, to have a Material Adverse
Effect.  There is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the knowledge of the Borrower, threatened against any of them, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending against
the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against the Borrower or any of its Subsidiaries or, to the
knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries, (iii) no union representation question exists with respect
to the employees of the Borrower or any of its Subsidiaries, (iv) no equal
employment opportunity charges or other claims of employment discrimination are
pending or, to the Borrower’s knowledge, threatened against the Borrower or any
of its Subsidiaries and (v) 


 


63





















 


no wage and hour department
investigation has been made of the Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clauses (i)-(v) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a Material Adverse Effect.


 


8.20.        Intellectual
Property, etc. 
Each of the Borrower and each of its Subsidiaries owns or has the right
to use (in each case, solely to the extent necessary for the present conduct of
its business) all the patents, trademarks, permits, domain names, service
marks, trade names, copyrights, licenses, franchises, inventions, trade
secrets, proprietary information and know-how of any type, whether or not
written (including, but not limited to, rights in computer programs and
databases) and formulas, or rights with respect to the foregoing, without any
known conflict with the rights of others which, or the failure to own or have
which, as the case may be, could reasonably be expected, either individually or
in the aggregate, to have a Material Adverse Effect.


 


8.21.        Indebtedness.  Schedule V sets forth a true and complete
list of all Scheduled Existing Indebtedness of the Borrower and its
Subsidiaries as of the Effective Date, in each case showing the aggregate
principal amount thereof and the name of the respective borrower and any Credit
Party or any of its Subsidiaries which directly or indirectly guarantees such
debt.


 


8.22.        Insurance.  Schedule VI sets forth a true and complete
listing of all insurance maintained by the Borrower and its Subsidiaries as of
the Effective Date, with the amounts insured (and any deductibles) set forth
therein.


 


SECTION 9.           Affirmative
Covenants.  The Borrower hereby
covenants and agrees that on and after the Effective Date and until the Total
Commitment has terminated and the Term Loans and Notes (in each case together
with interest thereon), Fees and all other Obligations (other than indemnities
described in Section 13.13 which are not then due and payable) incurred
hereunder and thereunder, are paid in full:


 


9.01.        Information
Covenants. 
The Borrower will furnish to each Lender:


 


(a)           [Reserved].


 


(b)           Quarterly
Financial Statements.  Within 45 days
after the close of each of the first three quarterly accounting periods in each
fiscal year of the Borrower, (i) the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and
retained earnings and statement of cash flows for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day
of such quarterly accounting period, in each case setting forth comparative
figures for the corresponding quarterly accounting period in the prior fiscal
year and comparable budgeted figures for such quarterly accounting period as
set forth in the respective budget delivered pursuant to Section 9.01(e), all
of which shall be certified by the chief financial officer of the Borrower as
fairly presenting in all material respects in accordance with GAAP the
financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations for the periods indicated,
subject to normal year-end audit adjustments and the 


 


64





















 


absence of footnotes, and (ii)
management’s discussion and analysis of the important operational and financial
developments during such quarterly accounting period.


 


(c)           Annual
Financial Statements.  Within 90 days
after the close of each fiscal year of the Borrower, (i) the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income and retained earnings
and statement of cash flows for such fiscal year setting forth comparative
figures for the preceding fiscal year and certified by PricewaterhouseCoopers
LLP or other independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent, together with a
report of such accounting firm containing a certification (which certification
may be limited or eliminated to the extent expressly required by then
applicable accounting rules or guidelines) that in the course of its regular
audit of the financial statements of the Borrower and its Subsidiaries, which
audit was conducted in accordance with GAAP, such accounting firm obtained no
knowledge of any Default or an Event of Default relating to financial or
accounting matters which has occurred and is continuing or, if in the opinion
of such accounting firm such a Default or an Event of Default has occurred and
is continuing, a statement as to the nature thereof, and (ii) management’s
discussion and analysis of the important operational and financial developments
during such fiscal year.


 


(d)           Management
Letters.  Promptly after the Borrower’s
or any of its Subsidiaries’ receipt thereof, a copy of any “management letter”
received from its certified public accountants and management’s response
thereto.


 


(e)           Budgets.  No later than 60 days following the first day
of each fiscal year of the Borrower, a budget in form consistent with the
financial forecasts of the Borrower provided to the Administrative Agent prior
to the Effective Date (including budgeted statements of income, sources and
uses of cash and balance sheets for the Borrower and its Subsidiaries on a
consolidated basis) for each quarter of such fiscal year prepared in detail, in
each case, setting forth, with appropriate discussion, the principal
assumptions upon which such budget is based.


 


(f)            Officer’s
Certificates.  At the time of the
delivery of the financial statements provided for in Sections 9.01(b) and (c),
a compliance certificate from the chief financial officer of the Borrower
certifying on behalf of the Borrower that, to such officer’s knowledge after
due inquiry, no Default or Event of Default has occurred and is continuing or,
if any Default or Event of Default has occurred and is continuing, specifying
the nature and extent thereof, which certificate shall (i) set forth in
reasonable detail the calculations required to establish whether the Borrower
and its Subsidiaries were in compliance with the provisions of Sections 10.07
through 10.10, inclusive, at the end of such fiscal quarter or year, as the
case may be, (ii) if delivered with the financial statements required by
Section 9.01(c), set forth in reasonable detail the amount of (and the
calculations required to establish the amount of) Excess Cash Flow for the
respective Excess Cash Payment Period, and (iii) certify that there have been
no changes to Annexes C through F, and Annexes I through K, in each case of the
Security Agreement and Annexes A through F of the Pledge Agreement, in each
case since the Effective Date or, if later, since the date of the most recent
certificate delivered pursuant to this Section 9.01(f), or if there have been
any such changes, a list in reasonable detail of such changes (but, in each
case with respect to this clause (iii), only to the extent that such changes
are required to be reported to the Collateral Agent pursuant to the terms of
such Security Documents) and whether 


 


65





















 


the Borrower and the other Credit
Parties have otherwise taken all actions required to be taken by them pursuant
to such Security Documents in connections with any such changes.


 


(g)           Notice
of Default, Litigation and Material Adverse Effect.  Promptly, and in any event within three
Business Days after any officer of the Borrower or any of its Subsidiaries
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default, (ii) any litigation or
governmental investigation or proceeding pending against the Borrower or any of
its Subsidiaries (x) which, either individually or in the aggregate, has had, or
could reasonably be expected to have, a Material Adverse Effect or (y) with
respect to any Credit Document, or (iii) any other event, change or
circumstance that has had, or could reasonably be expected to have, a Material
Adverse Effect.


 


(h)           Other
Reports and Filings.  Promptly after
the filing or delivery thereof, copies of all financial information, proxy
materials and reports, if any, which the Borrower or any of its Subsidiaries
shall publicly file with the Securities and Exchange Commission or any successor
thereto (the “SEC”) or deliver to holders (or any trustee, agent or
other representative therefor) of any Permitted Subordinated Notes, Permitted
Disqualified Preferred Stock or Qualified Preferred Stock.


 


(i)            Environmental
Matters.  Promptly after any officer of the Borrower or any of
its Subsidiaries obtains knowledge thereof, notice of one or more of the
following environmental matters to the extent that such environmental matters,
either individually or when aggregated with all other such environmental
matters, could reasonably be expected to have a Material Adverse Effect:


 


(i)            any pending or threatened Environmental Claim against the Borrower or any
of its Subsidiaries or any currently owned Real Property;


 


(ii)           any condition or occurrence on or arising from any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries that (a) results
in noncompliance by the Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or any such
Real Property that is currently owned;


 


(iii)          any condition or occurrence on any currently owned Real Property that
could reasonably be expected to cause such Real Property to be subject to any
restrictions on the ownership, lease, occupancy, use or transferability of such
Real Property under any Environmental Law; and


 


(iv)          the taking of any removal or remedial action by the Borrower or any
Subsidiary, or by any party on the owned Real Property, in response to the
actual or alleged Release of any Hazardous Material as required by any
Environmental Law or any governmental or other administrative agency; provided
that in any event the Borrower shall deliver to each Lender all notices
received by the Borrower or any of its Subsidiaries from any government or
governmental agency under, or pursuant to, CERCLA which identify the Borrower
or any of its Subsidiaries as potentially responsible 


 


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parties
for remediation costs or which otherwise notify the Borrower or any of its
Subsidiaries of potential liability under CERCLA.


 


All such notices shall describe in reasonable detail
the nature of the claim, investigation, condition, occurrence or removal or
remedial action and the Borrower’s or such Subsidiary’s response thereto.


 


(j)            Other
Information.  From time to time, such
other information or documents (financial or otherwise) with respect to the
Borrower or any of its Subsidiaries as the Administrative Agent or any Lender
(through the Administrative Agent) may reasonably request.


 


9.02.        Books,
Records and Inspections; Annual Meetings.  The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true
and correct entries in conformity with GAAP and all requirements of law shall
be made of all dealings and transactions in relation to its business and
activities.  The Borrower will, and will
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Lender to visit and inspect,
under guidance of officers of the Borrower or such Subsidiary, any of the
properties of the Borrower or such Subsidiary, and to examine the books of
account of the Borrower or such Subsidiary and discuss the affairs, finances
and accounts of the Borrower or such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants, all upon
reasonable prior notice and at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or any such Lender may reasonably
request; provided that so long as no Default or Event of Default has
occurred and is continuing, the Administrative Agent and the Lenders shall be
limited to one such visit and inspection during each fiscal year of the
Borrower.


 


9.03.        Maintenance
of Property; Insurance.  (a) 
The Borrower will, and will cause each of its Subsidiaries to, (i) keep
all property necessary to the business of the Borrower and its Subsidiaries in
good working order and condition, ordinary wear and tear excepted and subject
to the occurrence of casualty events, (ii) maintain with financially sound and
reputable insurance companies insurance on all such property and against all
such risks as is consistent and in accordance with industry practice for
companies similarly situated owning similar properties and engaged in similar
businesses as the Borrower and its Subsidiaries, and (iii) furnish to the
Administrative Agent, upon its request therefor, full information as to the
insurance carried.  The provisions of
this Section 9.03 shall be deemed supplemental to, but not duplicative of, the
provisions of any Security Documents that require the maintenance of insurance.


 


(b)           All
insurance policies or certificates (or certified copies thereof) with respect
to the Borrower’s and its Subsidiaries’ property (and any other insurance
maintained by the Borrower and/or such Subsidiaries) (i) shall be endorsed to
the Collateral Agent’s satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee
and/or additional insured) and (ii) shall state that such insurance policies
shall not be canceled without at least 30 days’ prior written notice thereof by
the respective insurer to the Collateral Agent.


 


(c)           If the
Borrower or any of its Subsidiaries shall fail to maintain insurance in
accordance with this Section 9.03, or if the Borrower or any of its
Subsidiaries shall fail to so 


 


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endorse all policies or certificates with respect thereto to the
Collateral Agent’s satisfaction as provided in Section 9.03(b), the
Administrative Agent shall have the right (but shall be under no obligation),
following prior notice to the Borrower, to procure such insurance and the
Borrower agrees to reimburse the Administrative Agent for all reasonable costs
and expenses of procuring such insurance.


 


9.04.        Existence;
Franchises.  The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done, all
things reasonably necessary to preserve and keep in full force and effect its
existence and its material rights, franchises, licenses, permits, copyrights,
trademarks and patents; provided, however, that nothing in this
Section 9.04 shall prevent (i) sales of assets and other transactions by the
Borrower or any of its Subsidiaries in accordance with Section 10.02 or (ii)
the withdrawal by the Borrower or any of its Subsidiaries of its qualification
as a foreign Company in any jurisdiction if such withdrawal could not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


9.05.        Compliance
with Statutes, etc.  The Borrower will, and will cause each of its
Subsidiaries to, comply with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


9.06.        Compliance
with Environmental Laws.  (a)  The Borrower will comply, and will cause each
of its Subsidiaries to comply, with all Environmental Laws and permits
applicable to, or required by, their ownership, lease or use of any Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, except such noncompliances as could not, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect,
and will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will take all actions reasonably necessary
to keep or cause to be kept all owned Real Property free and clear of any Liens
imposed pursuant to such Environmental Laws (except Permitted Liens).  Neither the Borrower nor any of its
Subsidiaries will generate, use, treat, store, Release or dispose of Hazardous
Materials, or permit the generation, use, treatment, storage, Release or
disposal of Hazardous Materials on any Real Property now or hereafter owned,
leased or operated by the Borrower or any of its Subsidiaries, or transport
Hazardous Materials or permit the transportation of Hazardous Materials to or
from any such Real Property, except, in each case, for Hazardous Materials
generated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance with all applicable Environmental Laws and as required
in connection with the operation, use and maintenance of the business or
operations of the Borrower or any of its Subsidiaries, except as any such
generation, use, treatment, storage, Release or disposition could not
reasonably be expected to have a Material Adverse Effect.


 


(b)           (i) After
the receipt by the Administrative Agent or any Lender of any notice of the type
described in Section 9.01(i), (ii) at any time that the Borrower or any of its
Subsidiaries are not in compliance with Section 9.06(a) or (iii) in the event
that the Administrative Agent or the Lenders have exercised any of the remedies
pursuant to the last 


 


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paragraph of Section 11, the Borrower will (in each case) provide, at
the sole expense of the Borrower and at the request of the Administrative Agent,
an environmental site assessment report concerning the Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries which is the
subject of such notice, noncompliance or remedies, prepared by an environmental
consulting firm reasonably approved by the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the potential cost of any
removal or remedial action in connection with such Hazardous Materials on such
Real Property.  If the Borrower fails to
provide the same within 60 days after such request was made, the Administrative
Agent may order the same, the cost of which shall be borne by the Borrower, and
the Borrower shall grant and hereby grants to the Administrative Agent and the
Lenders and their respective agents access to such Real Property and
specifically grant the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants and landlords, to
undertake such an assessment at any reasonable time upon reasonable notice to
the Borrower, all at the sole expense of the Borrower.


 


9.07.        ERISA.  (a)  As soon as possible and, in
any event, within fifteen (15) days after the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate knows or has reason to know of the occurrence
of any of the following, the Borrower will deliver to each of the Lenders a
certificate of the chief financial officer of the Borrower setting forth the
full details as to such occurrence and the action, if any, that the Borrower, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given or filed by the Borrower,
such Subsidiary, the Plan administrator or such ERISA Affiliate to or with the
PBGC or any other government agency, or a Plan participant and any notices
received by the Borrower, such Subsidiary or ERISA Affiliate from the PBGC or
any other government agency, or a Plan participant with respect thereto:  that a Reportable Event has occurred (except
to the extent that the Borrower has previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61, and an event
described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation
Section 4043 is reasonably expected to occur with respect to such Plan within
the following 30 days; that an accumulated funding deficiency, within the
meaning of Section 412 of the Code or Section 302 of ERISA, has been incurred
or an application may be or has been made for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to
be made with respect to a Plan or Foreign Pension Plan has not been timely
made; that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan which is subject to Title IV of ERISA;
that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the Borrower, any


 


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Subsidiary of the Borrower or any ERISA Affiliate will or
may reasonably incur any liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from
a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code
or Section 409, 502(i) or 502(l) of ERISA; to the extent not required to be
reported in the Company’s quarterly or annual financial statements, that the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or may
reasonably incur any material liability with respect to a group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code or any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan
or any Foreign Pension Plan.  The Borrower
will deliver to each of the Lenders copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA.  The
Borrower will also deliver to each of the Lenders a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan (including,
to the extent required, the related financial and actuarial statements and
opinions and other supporting statements, certifications, schedules and
information) required to be filed with the Internal Revenue Service.  In addition to any certificates or notices
delivered to the Lenders pursuant to the first sentence hereof, copies of
annual reports and any records, documents or other information required to be furnished
to the PBGC or any other government agency, and any material notices received
by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan shall be delivered to the Lenders
no later than ten (10) days after the date such annual report has been filed
with the Internal Revenue Service or such records, documents and/or information
has been furnished to the PBGC or any other government agency or such notice
has been received by the Borrower, the Subsidiary or the ERISA Affiliate, as
applicable.


 


(b)           The
Borrower and each of its applicable Subsidiaries shall ensure that all Foreign
Pension Plans administered by it or into which it makes payments obtains or
retains (as applicable) registered status under and as required by applicable
law and is administered in a timely manner in all respects in compliance with
all applicable laws except where the failure to do any of the foregoing would
not be reasonably likely to result in a Material Adverse Effect.


 


(c)           If,
at any time after the Effective Date, the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate maintains, or contributes to (or incurs an
obligation to contribute to), a pension plan as defined in Section 3(2) of
ERISA which is not set forth in Schedule IV, as may be updated from time to
time, then the Borrower shall deliver to the Lenders an updated Schedule IV as
soon as possible and, in any event, within ten (10) days after the Borrower,
such Subsidiary or such ERISA Affiliate maintains, or contributes to (or incurs
an obligation to contribute to), such pension plan.  Such updated Schedule IV shall supersede and
replaced the existing Schedule IV.


 


9.08.        End of Fiscal Years; Fiscal Quarters.  The Borrower will cause (i) each of its, and
each of its Subsidiaries’, fiscal years to end on December 31 of each calendar
year and (ii) each of its, and each of its Subsidiaries’, fiscal quarters to
end on March 31, June 30, September 30 and December 31 of each calendar year; provided
that Foreign Subsidiaries of the Borrower shall not be required to maintain the
fiscal year and fiscal quarter ends described above if it is not practicable
for such Foreign Subsidiary to maintain same as a result of foreign statutes,
rules or law applicable to such Foreign Subsidiary.


 


9.09.        Performance of Obligations.  The Borrower will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each
mortgage, indenture, security agreement, loan agreement or credit agreement and
each other agreement, contract or 


 


70





















 


instrument by which it is bound, except such non-performances as could
not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


9.10.        Payment of Taxes.  The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon any properties of the Borrower or any of its Subsidiaries
not otherwise permitted under Section 10.01(i); provided that neither
the Borrower nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP.


 


9.11.        Use of Proceeds.  The Borrower will use the proceeds of the
Term Loans only as provided in Section 8.08.


 


9.12.        Additional Security; Further Assurances; etc.  (a)  The Borrower will, and will
cause each other Credit Party to, grant to the Collateral Agent mortgages in
such Real Property of the Borrower and such Credit Party as are not covered by
the original Security Documents and as may be reasonably requested from time to
time by the Administrative Agent or the Required Lenders (collectively, the “Additional
Mortgage Documents”).  All such
mortgages shall be granted pursuant to documentation reasonably satisfactory in
form and substance to the Collateral Agent and shall constitute valid and
enforceable perfected hypothecations and mortgages superior to and prior to the
rights of all third Persons and enforceable as against third parties and
subject to no other Liens, except for Permitted Liens.  The Additional Mortgage Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent required to be
granted pursuant to the Additional Mortgage Documents and all taxes, fees and
other charges payable in connection therewith shall have been paid in
full.  Notwithstanding the foregoing,
this Section 9.12(a) shall not apply to (and the Borrower and its Subsidiaries
shall not be required to grant a mortgage in) any Real Property the Fair Market
Value of which is less than $500,000 or any Real Property that is a leasehold
interest and with respect to which the Borrower has not obtained (after using
commercially reasonable efforts to obtain same) the consent of the lessor to grant
a mortgage in such leasehold interest.


 


(b)           The
Borrower will, and will cause each of the other Credit Parties that are
Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney, certificates,
real property surveys, reports, landlord waivers, bailee agreements, control
agreements and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require (it being understood that the foregoing
covenant is subject to the proviso appearing in Section 9.12(d)).  Furthermore, the Borrower will, and will
cause the other Credit Parties that are Subsidiaries of the Borrower to,
deliver to the Collateral Agent such opinions of 


 


71





















 


counsel, title insurance and other related documents as may be
reasonably requested by the Administrative Agent to assure itself that this
Section 9.12 has been complied with.


 


(c)           If
the Administrative Agent or the Required Lenders reasonably determine that they
are required by law or regulation to have appraisals prepared in respect of any
Real Property of the Borrower and its Subsidiaries constituting Collateral, the
Borrower will, at its own expense, provide to the Administrative Agent appraisals
which satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of the Financial Institution Reform, Recovery and Enforcement Act of
1989, as amended, and which shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent.


 


(d)           The
Borrower agrees that each action required by clauses (a) through (c) of this
Section 9.12 shall be completed as soon as reasonably practicable, but in no
event later than 60 days (or such longer period as may be acceptable to the
Administrative Agent in its discretion) after such action is requested to be
taken by the Administrative Agent or the Required Lenders; provided
that, in no event will the Borrower or any of its Subsidiaries be required to
take any action referred to in this Section 9.12 that requires consent or
approval of a third party, other than using its commercially reasonable
efforts, to obtain consents from third parties with respect to its compliance
with this Section 9.12.


 


9.13.        Ownership of Subsidiaries; etc.  Except as otherwise permitted by Section
10.05(iii) or (x) or pursuant to a Permitted Acquisition consummated in
accordance with the terms hereof, the Borrower will, and will cause each of its
Subsidiaries to, own 100% of the Equity Interests of each of their Subsidiaries
(other than (x) Equity Interests in StayFriends GmbH subject to options issued
to T-Online International AG, (y) directors’ qualifying shares to the extent
required by applicable law or (z) Equity Interests of a Foreign Subsidiary of
the Borrower, to the extent ownership of a lesser percentage of the Equity
Interests of such Foreign Subsidiary is required to comply with applicable
law).


 


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9.14.        Share Repurchase.  (a)        Within
3 Business Days following the Borrowing Date (or such longer period following
the Borrowing Date as shall be acceptable to the Administrative Agent in its
sole discretion), the Borrower shall have (i) utilized the proceeds from the
Term Loans deposited in the Tender Offer Account to purchase all Borrower
Common Stock tendered, and not theretofore withdrawn, pursuant to the Tender
Offer (or such lesser amount of shares as is specified by the Tender Offer
Documents) in accordance with the relevant requirements of the Tender Offer
Documents and all applicable law and (ii) immediately following such purchase,
retired all of the shares of Borrower Common Stock so repurchased (the
transactions described in preceding clauses (i) and (ii), collectively, the “Share
Repurchase”).  (x) On the Expiration
Date (as defined in the Tender Offer Documents), all conditions precedent to
the consummation of the Share Repurchase as set forth in the Tender Offer
Documents shall have been satisfied or waived and (y) on the date of the consummation
of the Share Repurchase, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate the Share Repurchase in all material respects in accordance with the
terms of the Tender Offer Documents and all applicable laws have been obtained,
given, filed or taken and are in full force and effect (or effective judicial
relief with respect thereto has been obtained).


 


(b) Within 5 Business Days following the Borrowing
Date (or such longer period following the Borrowing Date as shall be acceptable
to the Administration Agent in its sole discretion), the Borrower shall have
repaid outstanding Term Loans, to the extent required by Section 5.02(j).


 


9.15.        Interest Rate Protection.  No later than 90 days following the Borrowing
Date, the Borrower will enter into (and thereafter maintain) an Interest Rate
Protection Agreement mutually acceptable to the Borrower and the Administrative
Agent, having a term of at least two years, for an aggregate notional principal
amount equal to at least 33-1⁄3% of the aggregate principal amount of the
Term Loans outstanding on the date such Interest Rate Protection Agreement is
entered into by the Borrower.


 


9.16.        Permitted Acquisitions.  (a)  Subject to the provisions of
this Section 9.16 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and each Wholly-Owned Subsidiary of the Borrower may
from time to time effect Permitted Acquisitions, so long as (in each case
except to the extent the Required Lenders otherwise specifically agree in
writing in the case of a specific Permitted Acquisition):  (i) no Default or Event of Default shall have
occurred and be continuing at the time of the consummation of the proposed
Permitted Acquisition or immediately after giving effect thereto; (ii) the
Borrower shall have given to the Administrative Agent at least 5 Business Days’
prior written notice of any Permitted Acquisition (or such shorter period of
time as may be reasonably acceptable to the Administrative Agent), which notice
shall describe in reasonable detail the principal terms and conditions of such
Permitted Acquisition; (iii) calculations are made by the Borrower with respect
to the financial covenants contained in Sections 10.08 through 10.10,
inclusive, for the respective Calculation Period on a Pro  Forma
Basis as if the respective Permitted Acquisition and all other Permitted
Acquisitions theretofore consummated after the first day of such Calculation
Period) had occurred on the first day of such Calculation Period, and such
calculations shall show that such financial covenants would have been complied
with if the Permitted Acquisition had occurred on the first day of such
Calculation Period; (iv) the Aggregate Consideration payable for the proposed
Permitted Acquisition, when added to the Aggregate Consideration paid or
payable for all other Permitted Acquisitions theretofore consummated during the
then fiscal year 


 


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of the Borrower, does not exceed the Applicable Annual Permitted
Acquisition Basket Amount for such fiscal year; (v) at the time of the proposed
Permitted Acquisition (and after giving effect thereto), no more than 50% of
the consolidated assets and 50% of the annual gross revenues of the Acquired
Entities or Businesses acquired pursuant to Permitted Acquisitions during the
then fiscal year of the Borrower (including pursuant to the proposed Permitted
Acquisition) are located or generated, as the case may be, outside the United
States (as determined from the most recently available financial information
for the respective Acquired Entities or Businesses), provided that, so
long as no Default or Event of Default has occurred and is continuing, if at
the time of the proposed Permitted Acquisition the Senior Leverage Ratio is
less than 0.75:1.0 (as set forth in the officer’s certificate delivered
pursuant to Section 9.01(f) for the fiscal quarter or fiscal year, as the case
may be, of the Borrower then last ended for which financial statements are
available), the requirements of this clause (v) shall not be applicable; and
(vi) Borrower shall have delivered to the Administrative Agent and each Lender
a certificate executed by its chief financial officer, certifying to the best
of such officer’s knowledge, compliance with the requirements of preceding
clauses (i) through (v), inclusive, and containing the calculations (in
reasonable detail) required by preceding clauses (iii), (iv) and (v).


 


(b)           At
the time of each Permitted Acquisition involving the creation or acquisition of
a Subsidiary, or the acquisition of capital stock or other Equity Interest of
any Person, the capital stock or other Equity Interests thereof created or
acquired in connection with such Permitted Acquisition shall be pledged for the
benefit of the Secured Creditors pursuant to (and to the extent required by)
the Pledge Agreement.


 


(c)           The
Borrower will cause each Subsidiary which is formed to effect, or is acquired
pursuant to, a Permitted Acquisition to comply with, and to execute and deliver
all of the documentation as and to the extent required by, Sections 9.12 and
10.15, to the reasonable satisfaction of the Administrative Agent.


 


SECTION
10.         Negative
Covenants.  The Borrower hereby
covenants and agrees that on and after the Effective Date and until the Total
Commitment has terminated and the Term Loans and Notes (in each case, together
with interest thereon), Fees and all other Obligations (other than any
indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder and thereunder, are paid in full:


 


10.01.      Liens.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable with recourse to the
Borrower or any of its Subsidiaries), or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided
that the provisions of this Section 10.01 shall not prevent the creation,
incurrence, assumption or existence of the following (Liens described below are
herein referred to as “Permitted Liens”):


 


(i)            inchoate Liens for
taxes, assessments or governmental charges or levies not yet due or Liens for
taxes, assessments or governmental charges or levies being 


 


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contested in good faith and by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP;


 


(ii)           Liens in respect of
property or assets of the Borrower or any of its Subsidiaries imposed by law,
which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s,
materialmen’s and mechanics’ liens and other similar Liens arising in the
ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Borrower’s or such Subsidiary’s
property or assets or materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being contested
in good faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to any such
Lien;


 


(iii)          Liens in existence
on the Effective Date which are listed in Schedule VII plus renewals,
replacements and extensions of such Liens, provided that (x) the
aggregate principal amount of the Indebtedness, if any, secured by such Liens
does not increase from that amount outstanding at the time of any such renewal,
replacement or extension and (y) any such renewal, replacement or extension
does not encumber any additional assets or properties of the Borrower or any of
its Subsidiaries;


 


(iv)          Liens created
pursuant to the Credit Documents;


 


(v)           licenses,
sublicenses, leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;


 


(vi)          Liens upon assets of
the Borrower or any of its Subsidiaries subject to Capitalized Lease
Obligations to the extent such Capitalized Lease Obligations are permitted by
Section 10.04(iii), provided that (x) such Liens only serve to secure
the payment of Indebtedness arising under such Capitalized Lease Obligation and
(y) the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the Borrower or any Subsidiary
of the Borrower;


 


(vii)         Liens placed upon
equipment or machinery acquired after the Effective Date and used in the
ordinary course of business of the Borrower or any of its Subsidiaries and
placed at the time of the acquisition thereof (or at the time of the
refinancing of Indebtedness in respect thereof) by the Borrower or such
Subsidiary or within 90 days thereafter to secure Indebtedness incurred to pay
all or a portion of the purchase price thereof or to secure Indebtedness
incurred solely for the purpose of financing the acquisition of any such
equipment or machinery or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that (x) the
Indebtedness secured by such Liens is permitted by Section 10.04(iii) and (y)
in all events, the Lien encumbering the equipment or machinery so acquired does
not encumber any other asset of the Borrower or such Subsidiary;


 


(viii)        easements,
rights-of-way, restrictions, encroachments and other similar charges or
encumbrances, and minor title deficiencies, in each case not securing 


 


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Indebtedness
and not materially interfering with the conduct of the business of the Borrower
or any of its Subsidiaries;


 


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


 


(x)            Liens (x) arising
from judgments, decrees or attachments in circumstances not constituting an
Event of Default under Section 11.09, (y) arising in connection with the
deposit or payment of cash or other property with or to any court or other
governmental authority in connection with any pending claim or litigation and
(z) arising in connection with the deposit of cash or other property in
connection with the issuance of stay and appeal bonds, provided that the aggregate amount of all cash and the Fair Market
Value of all other property pledged, paid and/or deposited by the Borrower and
its Subsidiaries pursuant to this clause (x) shall not exceed $15,000,000 at
any time;


 


(xi)           (x) statutory,
common law and contractual landlords’ Liens under leases to which the Borrower
or any of its Subsidiaries is a party (except to the extent securing
Capitalized Lease Obligations) and (y) any interest or title of a lessor,
sublessor or licensor under any lease or license agreement permitted by this
Agreement to which the Borrower or any of its Subsidiaries is a party;


 


(xii)          Liens (other than
any Lien imposed by ERISA) (w) incurred or deposits made in the ordinary course
of business in connection with general insurance maintained by the Borrower and
its Subsidiaries, (x) incurred or deposits made in the ordinary course of
business of the Borrower and its Subsidiaries in connection with workers’
compensation, unemployment insurance and other types of social security, (y) to
secure the performance by the Borrower and its Subsidiaries of tenders,
statutory obligations (other than excise taxes), surety and customs bonds,
statutory bonds, bids, government contracts, trade contracts, performance and
return of money bonds and other similar obligations of a like nature incurred
in the ordinary course of business (exclusive of (I) obligations for the
payment of borrowed money and (II) stay and appeal bonds and other obligations
described in Section 10.03(x) above) or (z) to secure the performance by the
Borrower and its Subsidiaries of leases of Real Property, to the extent
incurred or made in the ordinary course of business, provided that the
aggregate amount of all cash and the Fair Market Value of all other property
subject to all Liens permitted pursuant to preceding sub-clauses (w), (y) and
(z) above shall not exceed $5,000,000 at any time;


 


(xiii)         Permitted
Encumbrances;


 


(xiv)        Liens on property or
assets acquired pursuant to a Permitted Acquisition, or on property or assets
of a Subsidiary of the Borrower in existence at the time such Subsidiary is
acquired pursuant to a Permitted Acquisition, provided that (x) any
Indebtedness that is secured by such Liens is permitted to exist under Section
10.04(iv), and (y) such Liens are not incurred in connection with, or in
contemplation or anticipation of, such Permitted Acquisition and do not attach
to any other asset of the Borrower or any of its Subsidiaries;


 


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(xv)         Liens on cash
securing the Borrower’s reimbursement obligations under letters of credit
(including the Existing Letters of Credit) permitted by Section 10.04(ix), so
long as the aggregate amount of cash pledged to secure such reimbursement
obligations does not exceed $5,000,000 at any one time;


 


(xvi)        Liens arising out of
any conditional sale, title retention, consignment or other similar
arrangements for the sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business to the extent such Liens do not
attach to any assets other than the goods subject to such arrangements;


 


(xvii)       Liens (x) incurred in the
ordinary course of business in connection with the purchase or shipping of
goods or assets (or the related assets and proceeds thereof), which Liens are
in favor of the seller or shipper of such goods or assets and only attach to
such goods or assets, and (y) 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;


 


(xviii)      bankers’ Liens,
rights of setoff and other similar Liens existing solely with respect to cash
and Cash Equivalents on deposit in one or more accounts maintained by the
Borrower or any Subsidiary, in each case granted in the ordinary course of
business in favor of the bank or banks with which such accounts are maintained,
securing amounts owing to such bank or banks with respect to cash management
and operating account arrangements;


 


(xix)         Liens securing Permitted Refinancing
Indebtedness permitted pursuant to Section 10.04(xiv) to the extent such Liens
comply with clause (b)(ii) of the definition of Permitted Refinancing
Indebtedness; and


 


(xx)          additional Liens of the Borrower or any
Subsidiary of the Borrower not otherwise permitted by this Section 10.01 that
(x) do not materially impair the use of such assets in the operation of the
business of the Borrower or such Subsidiary and (y) do not secure obligations
in excess of $2,000,000 in the aggregate for all such Liens at any time.


 


In connection with the granting of Liens of the type
described in clauses (iii), (vi), (vii), (ix), (xiv), (xix) and (xx) of this
Section 10.01 by the Borrower of any of its Subsidiaries, the Administrative
Agent and the Collateral Agent shall be authorized to take any actions deemed
necessary or appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject
to such Liens).


 


10.02.      Consolidation, Merger, Purchase or Sale of
Assets, etc.   The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or merge, consolidate, convey, sell, lease or
otherwise dispose of all or any part of its property or assets, or enter into
any sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets in the ordinary course of


 


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business) of
any Person (any of the foregoing, a “Restricted Transaction”) (or agree to do
any of the foregoing at any future time), except that:


 


(i)            Capital
Expenditures by the Borrower and its Subsidiaries shall be permitted to the
extent not in violation of Section 10.07;


 


(ii)           each of the
Borrower and its Subsidiaries may make sales of inventory in the ordinary
course of business;


 


(iii)          Investments may be
made to the extent permitted by Section 10.05;


 


(iv)          the Borrower and its
Subsidiaries may sell assets (other than the capital stock or other Equity
Interests of any Subsidiary) after the Borrowing Date, so long as (w) no
Default or Event of Default then exists or would result therefrom,
(x) each such sale is in an arm’s-length transaction and the Borrower or
the respective Subsidiary receives at least Fair Market Value, (y) the Net Sale
Proceeds therefrom are applied and/or reinvested as (and to the extent)
required by Section 5.02(e) and (z) the aggregate amount of the Net Sale
Proceeds received from all assets sold pursuant to this clause (iv) shall
not exceed $2,500,000 in any fiscal year of the Borrower;


 


(v)           each of the Borrower
and its Subsidiaries may lease (as lessee) or license (as licensee) real or
personal property (so long as any such lease or license does not create a
Capitalized Lease Obligation except to the extent permitted by
Section 10.04(iii));


 


(vi)          each of the Borrower
and its Subsidiaries may sell or discount, in each case without recourse and in
the ordinary course of business, accounts receivable arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;


 


(vii)         each of the Borrower
and its Subsidiaries may grant licenses, sublicenses, leases or subleases to
other Persons not materially interfering with the conduct of the business of
the Borrower or any of its Subsidiaries, in each case so long as no such grant
otherwise affects the Collateral Agent’s security interest in the asset or
property subject thereto;


 


(viii)        the Borrower or any
Subsidiary of the Borrower may convey, lease, license, sell or otherwise
transfer all or any part of its business, properties and assets to the Borrower
or to any Subsidiary Guarantor, so long as any security interests granted to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets so transferred shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such transfer) and all actions required to maintain said perfected
status have been or are concurrently taken;


 


(ix)           any Subsidiary of
the Borrower may merge or consolidate with and into, or be dissolved or
liquidated into, the Borrower or any Subsidiary Guarantor, so long as (i) the
Borrower or such Subsidiary Guarantor is the surviving or continuing
corporation of any such merger or consolidation and (ii) any security interests
granted to the


 


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Collateral
Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such merger, consolidation, dissolution or liquidation) and all
actions required to maintain said perfected status have been or are
concurrently taken;


 


(x)            any Foreign
Subsidiary of the Borrower may be merged, consolidated or amalgamated with and
into, or be dissolved or liquidated into, or transfer any of its assets to, any
Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) such Wholly-Owned
Foreign Subsidiary of the Borrower is the surviving or continuing corporation
of any such merger, consolidation or amalgamation and (ii) any security
interests granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Documents in the Equity Interests of such
Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in
full force and effect and perfected and enforceable (to at least the same
extent as in effect immediately prior to such merger, consolidation,
amalgamation, dissolution, liquidation or transfer) and all actions required to
maintain said perfected status have been or are concurrently taken;


 


(xi)           Permitted
Acquisitions may be made to the extent permitted by Section 9.16 (including by
merger or consolidation);


 


(xii)          the Borrower and
its Subsidiaries may sell, convey or otherwise dispose of obsolete or worn out
property in the ordinary course of business;


 


(xiii)         the Borrower and its Subsidiaries may sell,
convey or otherwise dispose of cash and Cash Equivalents in the ordinary course
of business;


 


(xiv)        any Subsidiary may sell or issue any of such
Subsidiary’s Equity Interests to the Borrower or any Wholly-Owned Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor;


 


(xv)         the Borrower and its
Subsidiaries may make (i) transfers of condemned property to the respective
governmental authority or agency that has condemned same (whether by deed in
lieu of condemnation or otherwise), and (ii) transfers of properties that have
been subject to a casualty event to the respective insurer of such property or
its designee as part of an insurance settlement;


 


(xvi)        the Borrower and its
Subsidiaries may enter into agreements to effect Restricted Transactions, so
long as the respective Restricted Transaction is permitted pursuant to the
other provisions of this Section 10.02; provided that notwithstanding
the foregoing, the Borrower and its Subsidiaries may enter into agreements to
effect Restricted Transactions not permitted by the provisions of this Section
10.02 if such agreement (or any other agreement related thereto, the entering
into of which, or the consummation of transactions contemplated thereunder, is
a condition to the consummation of such Restricted Transaction, including, without
limitation, agreements to obtain financing for such Restricted Transaction)
shall require obtaining the requisite consent of the Required Lenders under
this Agreement or the repayment of all obligations 


 


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hereunder
prior to the consummation of any such Restricted Transaction; and


 


(xvii)       StayFriends GmbH may
issue or sell its Equity Interests to T-Online International AG in connection
with the exercise by T-Online International AG of its option to purchase such
Equity Interests pursuant to the existing option agreement between StayFriends
GmbH and T-Online International AG, so long as the Net Cash Proceeds therefrom
are applied to repay Term Loans as, and to the extent, required by Section
5.02(c).


 


To the extent the Required Lenders waive the
provisions of this Section 10.02 with respect to the sale of any Collateral, or
any Collateral is sold as permitted by this Section 10.02 (other than to the
Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear
of the Liens created by the Security Documents, and the Administrative Agent
and the Collateral Agent shall be authorized to take any actions deemed
necessary or appropriate in order to effect the foregoing.


 


10.03.      Dividends.  The Borrower will
not, and will not permit any of its Subsidiaries to, authorize, declare or pay
any Dividends with respect to the Borrower or any of its Subsidiaries, except
that:


 


(i)            any Subsidiary of
the Borrower may pay Dividends to the Borrower or to any Wholly-Owned
Subsidiary of the Borrower;


 


(ii)           any
Non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its
shareholders, members or partners generally, so long as the Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary paying
such Dividends receives at least it proportionate share thereof (based upon its
relative holding of the Equity Interest in the Subsidiary paying such Dividends
and taking into account the relative preferences, if any, of the various
classes of Equity Interests of such Subsidiary);


 


(iii)          the Borrower may
effect the Share Repurchase in accordance with the requirements of Section
7.05;


 


(iv)          if (and only if) the
aggregate amount of cash used to finance the Share Repurchase on the Borrowing
Date does not exceed $150,000,000, the Borrower may from time to time after the
Borrowing Date make and pay cash Dividends with respect to Borrower Common
Stock and/or repurchase outstanding shares of Borrower Common Stock (or
options, warrants or rights to purchase same) for cash, so long as (I) no
Default or Event of Default then exists or would exist immediately after giving
effect to the respective Dividend or repurchase, (II) the aggregate amount of
cash used to make Dividends and repurchases pursuant to this clause (iv) after
the Effective Date does not exceed the greater of (x) $50,000,000 and (y) the
remainder of $150,000,000 minus the aggregate amount of cash used to
finance the Share Repurchase on the Borrowing Date, (III) the aggregate amount
of cash used to make Dividends and repurchases pursuant to this clause (iv) in
any fiscal year of the Borrower does not exceed 50% of the amount permitted
under preceding sub-clause (II) of this clause (iv), (IV) calculations are made
by the Borrower demonstrating compliance with the covenants contained in
Sections 10.08, 10.09 and 10.10 for the Calculation Period most recently ended
prior to the date of the respective


 


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Dividend
or repurchase, determined on a Pro  Forma Basis (after giving
effect to the respective Dividend or repurchase and the incurrence of any
Indebtedness incurred to finance same) (V) in the case of a repurchase of
Equity Interests of the Borrower pursuant to this clause (iv), any such Equity
Interests are promptly retired and (VI) the Borrower shall have delivered to
the Administrative Agent a certificate from an Authorized Officer of the
Borrower certifying, to the best of his or her knowledge, as to compliance with
the requirements of this clause (iv) and containing the calculations (in
reasonable detail) required by the preceding clause (IV);


 


(v)           the Borrower may
redeem, repurchase or otherwise acquire for value shares of Borrower Common
Stock or options, warrants or rights to purchase Borrower Common Stock, as the
case may be, held by employees or former employees of the Borrower or any of
its Subsidiaries (i) pursuant to any employee subscription agreement, stock
option agreement or stock ownership arrangement or (ii) following the termination
of their employment (by death, disability or otherwise), provided that
(x) the only consideration paid by the Borrower in respect of such redemptions
and/or purchases shall be cash and/or Shareholder Subordinated Notes, (y) the
sum of (A) the aggregate amount paid by the Borrower in cash in respect of all
such redemptions and/or purchases plus (B) the aggregate amount of all
cash principal and interest payments made on Shareholder Subordinated Notes, in
each case after the Effective Date, shall not exceed $15,000,000, and
(z) at the time of any cash payment permitted to be made pursuant to this
Section 10.03(v) (including any cash payment under a Shareholder Subordinated
Note), no Default or Event of Default shall then exist or result therefrom;


 


(vi)          so long as no
Default or Event of Default exists or would result therefrom, the Borrower may
pay regularly accruing cash Dividends on its Permitted Disqualified Preferred
Stock issued pursuant to Section 10.13(c) in accordance with the terms of the
Permitted Disqualified Preferred Stock Documents therefor;


 


(vii)         the Borrower and its
Subsidiaries may make payments or distributions to dissenting stockholders
pursuant to applicable law pursuant to or in connection with any Permitted
Acquisition, so long as the amount of any such payment or distribution (to the
extent same is not included as Aggregate Consideration at the time of such
Permitted Acquisition for purposes of determining compliance with Sections
9.16(a)(vi) and (if applicable) (vii)) is included as Aggregate Consideration
at the time of such payment or distribution for purposes of determining
compliance with said Sections; and


 


(viii)        the Borrower may pay
regularly accruing Dividends with respect to Qualfied Preferred Stock through
the issuance of additional shares of Qualified Preferred Stock (but not in
cash) in accordance with the terms of the Qualified Preferred Stock Documents
therefor.


 


10.04.      Indebtedness.  The Borrower will
not, and will not permit any of its Subsidiaries to, contract, create, incur,
assume or suffer to exist any Indebtedness, except:


 


(i)            Indebtedness
incurred pursuant to this Agreement and the other Credit Documents;


 


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(ii)           Indebtedness of the
Borrower under Interest Rate Protection Agreements entered into with respect to
other Indebtedness permitted under this Section 10.04 so long as the entering
into of such Interest Rate Protection Agreements are bona fide hedging
activities and are not for speculative purposes;


 


(iii)          Indebtedness of the
Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations (to
the extent permitted pursuant to Section 10.07) and purchase money Indebtedness
described in Section 10.01(vii), provided that in no event shall the sum
of the aggregate principal amount of all Capitalized Lease Obligations and
purchase money Indebtedness permitted by this clause (iii) exceed $7,500,000 at
any time outstanding;


 


(iv)          Indebtedness of a
Subsidiary of the Borrower acquired pursuant to a Permitted Acquisition (or
Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness) (such Indebtedness described above in this Section
10.04(iv) being called “Permitted Acquired Debt”), provided that
(x) such Indebtedness was not incurred in connection with, or in anticipation
or contemplation of, such Permitted Acquisition, (y) such Indebtedness does not
constitute debt for borrowed money, it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebtedness shall not
constitute debt for borrowed money for purposes of this clause (y) and (z) the
aggregate principal amount of all Indebtedness permitted by this clause (iv),
when added to the aggregate principal amount of Permitted Refinancing Indebtedness
outstanding pursuant to Section 10.04(xiv) at any time (except to the extent
incurred to refinance Scheduled Existing Indebtedness and successive
refinancings thereof), shall not exceed $7,500,000 at any one time outstanding;


 


(v)           Indebtedness constituting
Intercompany Loans to the extent permitted by Section 10.05(vii);


 


(vi)          unsecured
subordinated Indebtedness of the Borrower, and subordinated guarantees thereof
by the Subsidiary Guarantors (and so long as same remain Subsidiary
Guarantors), under the Permitted Subordinated Notes and the other Permitted
Subordinated Notes Documents may be incurred in an aggregate principal amount
at any time outstanding not to exceed, when aggregated with the aggregate
liquidation preference of all Permitted Disqualified Preferred Stock then
outstanding, the Maximum Junior Capital Amount as then in effect, so long as
(i) all such Indebtedness is incurred in accordance with the requirements of
the definition of Permitted Subordinated Notes, (ii) no Default or Event of
Default shall exist both immediately before and immediately after giving effect
to the incurrence thereof, (iii) calculations are made by the Borrower
demonstrating compliance with the covenants contained in Sections 10.08, 10.09
and 10.10 for the Calculation Period most recently ended prior to the date of
the respective issuance of Permitted Subordinated Notes, determined on a Pro
Forma Basis (after giving effect to the respective issuance of Permitted
Subordinated Notes), (iv) calculations are made by the Borrower demonstrating
compliance with a Senior Leverage Ratio of less than 1.00:1.00 at such time,
determined on a Pro  Forma Basis (after giving effect to the
respective issuance of Permitted Subordinated Notes), (v) the Net Cash Proceeds
from the respective issuance of Permitted Subordinated Notes shall be applied
to repay Term


 


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Loans,
as, and to the extent, required by Section 5.02(d), and (vi) the Borrower shall
have furnished to the Administrative Agent a certificate from an Authorized
Officer of the Borrower certifying, to the best of his or her knowledge, as to
compliance with the requirements of this Section 10.04(vi) and containing the
calculations (in reasonable detail) required by the preceding clauses (iii) and
(iv);


 


(vii)         Scheduled Existing
Indebtedness outstanding on the Effective Date and listed on Schedule V (as
reduced by any repayments of principal thereof), without giving effect to any
subsequent extension, renewal or refinancing thereof, except that Scheduled
Existing Indebtedness may be refinanced through one or more issuances of
Permitted Refinancing Indebtedness in accordance with Section 10.04(xiv) below;


 


(viii)        Indebtedness of the
Borrower under the Shareholder Subordinated Notes issued after the Effective
Date in connection with a redemption or repurchase of Borrower Common Stock
pursuant to Section 10.03(v);


 


(ix)           Indebtedness of the
Borrower in respect of the letters of credit securing obligations arising in
the ordinary course of business under leases and utilities contracts in an
aggregate amount not to exceed $5,000,000 at any one time outstanding;


 


(x)            Indebtedness
constituting direct or indirect guarantees or similar obligations incurred in
the ordinary course of business by (i) the Borrower or any of its Subsidiaries
of obligations of any Wholly-Owned Subsidiary that is a Subsidiary Guarantor or
of the Borrower or (ii) any Foreign Subsidiary of obligations of any
Wholly-Owned Foreign Subsidiary;


 


(xi)           Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within five Business Days of
its incurrence;


 


(xii)          (x) Indebtedness of
the Borrower or any of its Subsidiaries evidenced by performance bonds, surety
bonds or customs bonds required in the ordinary course of business or in
connection with the enforcement of rights or claims of the Borrower or any of
its Subsidiaries (but excluding appeal, performance and other bonds issued in
respect of obligations arising in connection with judgments, decrees or
litigation) and (y) Indebtedness of the Borrower or any of its Subsidiaries
arising in connection with the third-party financing of insurance premiums in
the ordinary course of business, so long as the aggregate amount of all such
Indebtedness incurred pursuant to this clause (xii) does not exceed $5,000,000
at any time outstanding;


 


(xiii)         Indebtedness of the
Borrower or any of its Subsidiaries evidenced by appeal, performance and other
bonds issued in respect of obligations arising in connection with litigation or
judgments that do not result in a Default or an Event of Default; provided
that the aggregate outstanding amount of all such appeal, performance bonds and
other bonds permitted by this clause (xiii) shall not at any time exceed
$15,000,000;


 


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(xiv)        Permitted Refinancing
Indebtedness, so long as (x) no Default or Event of Default is in existence at
the time of the incurrence of such Permitted Refinancing Indebtedness and
immediately after giving effect thereto, (y) the aggregate principal amount of
Permitted Refinancing Indebtedness outstanding pursuant to this clause (xiv) at
any time (except to the extent incurred to refinance Scheduled Existing
Indebtedness and successive refinancings thereof), when added to the aggregate
principal amount of Permitted Acquired Debt outstanding pursuant to Section
10.04(iv) at any time, shall not exceed $7,500,000 and (z) in the case of any
Permitted Refinancing Indebtedness constituting Intercompany Debt, same shall
be evidenced by an Intercompany Note and, if held by a Credit Party, pledged to
the Collateral Agent pursuant to the Pledge Agreement;


 


(xv)         Indebtedness of
Foreign Subsidiaries of the Borrower the proceeds of which Indebtedness are
used for such Foreign Subsidiary’s working capital purposes, provided
that the aggregate principal amount of all such Indebtedness outstanding at any
time for all such Foreign Subsidiaries shall not exceed $2,500,000;


 


(xvi)        Investments
constituting guarantee obligations of the Borrower or any of its Subsidiaries,
to the extent permitted by Section 10.05(vii) or (x); and


 


(xvii)       additional
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed
$5,000,000 at any one time outstanding.


 


In the event that any
item of Indebtedness meets more than one of the categories set forth above, the
Borrower in its sole discretion may classify such item of Indebtedness and only
be required to include the amount and type of such Indebtedness in one or more
of such clauses, at its election.


 


10.05.      Advances, Investments and Loans.  The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, lend money or credit or
make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract (each of the foregoing an “Investment”
and, collectively, “Investments”), except that the following shall be
permitted:


 


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


 


(ii)           the Borrower and
its Subsidiaries may acquire and hold cash and Cash Equivalents;


 


(iii)          (x) Investments
constituting Intercompany Scheduled Existing Indebtedness in existence on the
Effective Date (and any refinancings thereof permitted pursuant to Section
10.04(xiv) and consistent with the definition of Permitted Refinancing


 


84





















 


Indebtedness)
and (y) such other Investments in existence on the Effective Date and described
on Schedule VIII as well as any other Investments relating thereto received in
respect thereof; provided that any additional Investments made with
respect to the Investments described in preceding subclause (y) (except, for
avoidance of doubt, for Investments received in respect of such existing
Investments) shall be permitted only if independently justified under the other
provisions of this Section 10.05;


 


(iv)          the Borrower and its
Subsidiaries may acquire and own investments (including debt obligations)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;


 


(v)           the Borrower and its
Subsidiaries may make loans and advances to their officers and employees for
moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business in an aggregate amount not to exceed
$1,000,000 at any time (determined without regard to any write-downs or
write-offs of such loans and advances);


 


(vi)          the Borrower may
enter into Interest Rate Protection Agreements to the extent required by
Section 9.15 or permitted by Section 10.04(ii);


 


(vii)         (I)  any Credit Party may make intercompany loans
and advances to any other Credit Party, (II) the Borrower and its Domestic
Subsidiaries may make intercompany loans and advances to any Wholly-Owned
Foreign Subsidiary, (III) any Subsidiary which is not a Credit Party may make
intercompany loans and advances to any Credit Party, (IV) any Foreign
Subsidiary may make intercompany loans and advances to any other Foreign
Subsidiary that is a Wholly-Owned Subsidiary and (V) any Credit Party may make
intercompany loans and advances to Juno India (such intercompany loans and
advances referred to in preceding clauses (I) through (V), collectively, the “Intercompany
Loans”), provided, that (u) in the case of Intercompany Loans to be
made pursuant to preceding clause (V), such Intercompany Loans shall only be
permitted, so long as (and only so long as) (x) the proceeds thereof are used
solely for the working capital purposes and general, administrative and
operating expenses of Juno India and (y) Juno India at all times conducts its
business on a basis consistent with its past practices as in effect on the
Effective Date, (v) at no time shall the aggregate outstanding principal amount
of all Intercompany Loans made during any fiscal year of the Borrower pursuant
to preceding sub-clause (II) of this clause (vii), when added to the amount of
contributions, capitalizations and forgivenesses theretofore made pursuant to
sub-clause (II) of Section 10.05(xiv) during such fiscal year of the Borrower
(for this purposes, taking the Fair Market Value of any property (other than
cash) so contributed at the time of such contribution), exceed $7,500,000
(determined (A) without regard to any write-downs or write-offs of such loans
and advances and (B) net of any returns on any such Investment in the form of a
principal repayment, distribution, dividend or redemption, as applicable, in
such fiscal year), (w) no Intercompany Loan may be made pursuant to subclause (II)
above at any time a Default or Event of Default has occurred and its
continuing, (x) each Intercompany Loan shall be evidenced by an Intercompany
Note, (y) each such Intercompany Note owned or held by a Credit Party shall be
pledged


 


85





















 


to
the Collateral Agent pursuant to the Pledge Agreement and (z) each Intercompany
Loan made by any Subsidiary of the Borrower that is not a Credit Party to a
Credit Party shall be subject to the subordination provisions contained in the
Intercompany Note; provided  further that any Intercompany Loans
made to any Subsidiary Guarantor pursuant to sub-clause (I) or (III) of this
clause (vii) shall cease to be permitted hereunder if such Subsidiary Guarantor
ceases to constitute a Credit Party or a Wholly-Owned Domestic Subsidiary
(except as a result of the sale of all of the Equity Interests of such
Subsidiary Guarantor);


 


(viii)        Permitted
Acquisitions shall be permitted in accordance with the requirements of Section
9.16;


 


(ix)           Contingent
Obligations permitted by Section 10.04(x), to the extent constituting
Investments;


 


(x)            so long as no
Default or Event of Default exists or would exist immediately after giving
effect to the respective Investment, the Borrower and its Subsidiaries shall be
permitted to make Investments in any Joint Venture on any date in an amount not
to exceed the Available Basket Amount on such date (after giving effect to all
prior and contemporaneous adjustments thereto, except as a result of such
Investment), it being understood and agreed that to the extent the Borrower or
one or more other Credit Parties (after the respective Investment has been
made) receives a cash return from the respective Joint Venture of amounts
previously invested pursuant to this clause (x) (which cash return may be made
by way of repayment of principal or payment of interest in the case of loans
and cash equity returns (whether as a distribution, dividend or redemption or
sale proceeds) in the case of equity investments) or a return in the form of an
asset distribution from the respective Joint Venture of any asset previously
contributed pursuant to this clause (x), then the amount of such cash return of
investment or the Fair Market Value of such distributed asset, as the case may
be, shall, upon the Administrative Agent’s receipt of a certification of the
amount of the return of investment from an Authorized Officer, apply to
increase the Available Basket Amount, provided that the aggregate amount
of increases to the Available Basket Amount described above shall not exceed
the amount of returned investment and, in no event, shall the amount of the
increases made to the Available Basket Amount in respect of any Investment
exceed the amount previously invested pursuant to this clause (x);


 


(xi)           the Borrower and
its Subsidiaries may acquire and hold obligations of their officers and
employees in connection with such officers’ and employees’ acquisition of
shares of Borrower Common Stock (so long as no cash is actually advanced by the
Borrower or any of its Subsidiaries in connection with the acquisition of such
obligations);


 


(xii)          the Borrower and its Subsidiaries may receive
and hold promissory notes, Equity Interests and other non-cash consideration
received in connection with any asset sale permitted by Section 10.02(iv);


 


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(xiii)         the Borrower and
its Subsidiaries may own the Equity Interests of their respective Subsidiaries
created or acquired in accordance with the terms of this Agreement (so long as
all amounts invested in such Subsidiaries are independently justified under
another provision of this Section 10.05);


 


(xiv)        (I) the Borrower and
any Subsidiary Guarantor may make capital contributions to or acquire Equity
Interests of any Subsidiary Guarantor which is a Wholly-Owned Domestic
Subsidiary, (II) the Borrower and its Domestic Subsidiaries may make capital
contributions to or acquire Equity Interests of Wholly-Owned Foreign
Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a
Wholly-Owned Foreign Subsidiary and outstanding under clause (vii) of this
Section 10.05, (III) any Wholly-Owned Foreign Subsidiary may make capital
contributions to any other Wholly-Owned Foreign Subsidiary, and may capitalize or
forgive any Indebtedness owed to it by a Wholly-Owned Foreign Subsidiary, and
(IV) any Credit Party may make capital contributions to or acquire Equity
Interests of Juno India; provided that (w) in the case of capital
contributions or issuances of Equity Interests to be made pursuant to preceding
clause (IV), such capital contributions and the issuances of equity shall only
be permitted, so long as (and only so long as) (A) the proceeds thereof are
used solely for working capital purposes and general, administrative and
operating expenses of Juno India and (B) Juno India at all times conducts its
business on a basis consistent with its past practices as in effect on the
Effective Date, (x) the aggregate amount of contributions, capitalizations and
forgiveness made during any fiscal year of the Borrower pursuant to preceding
subclause (II) (for this purpose, taking the Fair Market Value of any property
(other than cash) so contributed at the time of such contribution), when added
to the aggregate outstanding principal amount of Intercompany Loans made to
Wholly-Owned Foreign Subsidiaries under sub-clause (II) of Section 10.05(vii)
above during such fiscal year of the Borrower, shall not exceed an amount equal
to $7,500,000 (determined (A) without regard to any write-downs or write-offs
of any such Intercompany Loans) and (B) net of any returns on any such
Investment in the form of a principal repayment, distribution, dividend or
redemption, as applicable, in such fiscal year), (y) no contribution, capitalization
or forgiveness may be made pursuant to preceding subclause (II) at any time a
Default or Event of Default has occurred and its continuing, and (z) in the
case of any contribution pursuant to preceding subclause (I), any security
interest granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Security Documents in any assets so contributed shall
remain in full force and effect and perfected (to at least the same extent as
in effect immediately prior to such contribution) and all actions required to
maintain said perfected status have been or are concurrently taken; provided
further that any Investment made in or to any Subsidiary Guarantor
pursuant to sub-clause (I) of this clause (xiv) shall cease to be permitted
hereunder if such Subsidiary Guarantor ceases to constitute a Credit Party or a
Wholly-Owned Domestic Subsidiary (except as a result of the sale of all of the
Equity Interests of such Subsidiary Guarantor);


 


(xv)         any Credit Party may
make intercompany loans and capital contributions to Foreign Subsidiaries, and
may capitalize or forgive any intercompany Indebtedness owed to them by a
Foreign Subsidiary extended pursuant to this clause (xv), in each case on any
given date, so long as (x) no Default or Event of Default has occurred and is
continuing on such date and (y) the amount of the Investments made pursuant to
this


 


87





















 


clause
(xv) on such date (for this purpose, taking the Fair Market Value of any
property (other than cash) so contributed at the time of such contribution)
does not exceed the Available Basket Amount on such date (after giving effect
to all prior and contemporaneous adjustments thereto, except as a result of
such Investment), it being understood and agreed that to the extent the
Borrower or one or more other Credit Parties (after the respective Investment
has been made) receives a cash return from the respective Foreign Subsidiary of
amounts previously invested pursuant to this clause (xv) (which cash return may
be made by way of repayment of principal or payment of interest in the case of
loans and cash equity returns (whether as a distribution, dividend or
redemption or sale proceeds) in the case of equity investments) or a return in
the form of an asset distribution from the respective Foreign Subsidiary of any
asset previously contributed pursuant to this clause (xv), then the amount of
such cash return of investment or the Fair Market Value of such distributed
asset, as the case may be, shall, upon the Administrative Agent’s receipt of a
certification of the amount of the return of investment from an Authorized
Officer, apply to increase the Available Basket Amount, provided that
the aggregate amount of increases to the Available Basket Amount described
above shall not exceed the amount of returned investment and, in no event,
shall the amount of the increases made to the Available Basket Amount in
respect of any Investment exceed the amount previously invested pursuant to
this clause (xv);


 


(xvi)        the Borrower and its
Subsidiaries may make advances in the form of a prepayment of expenses to
vendors, suppliers and trade creditors, so long as such expenses were incurred
in the ordinary course of business of the Borrower or such Subsidiary; and


 


(xvii)       in addition to
investments permitted by clauses (i) through (xvi) of this Section 10.05, the
Borrower and its Subsidiaries may make additional loans, advances and other
Investments to or in a Person in an aggregate amount for all loans, advances
and other Investments made pursuant to this clause (xvii) (determined without
regard to any write-downs or write-offs thereof), net of cash repayments of
principal in the case of loans, sale proceeds in the case of Investments in the
form of debt instruments and cash equity returns (whether as a distribution,
dividend, redemption or sale) in the case of equity investments, not to exceed
$5,000,000.


 


10.06.      Transactions with Affiliates.  The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any transaction or series of related
transactions with any Affiliate of the Borrower or any of its Subsidiaries,
other than in the ordinary course of business and on terms and conditions
substantially as favorable to the Borrower or such Subsidiary as would
reasonably be obtained by the Borrower or such Subsidiary at that time in a
comparable arm’s-length transaction with a Person other than an Affiliate,
except that the following in any event shall be permitted:


 


(i)            Dividends may be
paid to the extent provided in Section 10.03;


 


88





















 


(ii)           loans may be made
and other transactions may be entered into by the Borrower and its Subsidiaries
to the extent permitted by Sections 10.02, 10.04 and 10.05;


 


(iii)          customary fees,
indemnities and reimbursements may be paid to non-officer directors of the
Borrower and its Subsidiaries; and


 


(iv)          the Borrower and its
Subsidiaries may enter into, and may make payments under, employment
agreements, employee benefits plans, stock option plans, indemnification
provisions and other similar compensatory arrangements with officers, employees
and directors of the Borrower and its Subsidiaries in the ordinary course of
business.


 


10.07.      Capital Expenditures.  (a)  The Borrower will not, and
will not permit any of its Subsidiaries to, make any Capital Expenditures,
except that the Borrower and its Subsidiaries may make Capital Expenditures so
long as the aggregate amount of such Capital Expenditures made by all such
Persons under this Section 10.07(a) does not exceed in the aggregate (x) for
the period from the Effective Date through and including December 31, 2004,
$2,000,000 or (y) for any fiscal year of the Borrower set forth below (taken as
one accounting period) the sum of (i) the amount set forth opposite such fiscal
year below plus (ii) an amount equal to 25% of the Acquired EBITDA of
each Acquired Entity or Business acquired after the Effective Date and prior to
the first day of the respective fiscal year set forth below for the trailing
twelve months of such Acquired Entity or Business immediately preceding its
acquisition for which financial statements have been made available to the
Borrower and the Lenders plus (iii) during the respective fiscal year of
any such acquisition of an Acquired Entity or Business, an amount equal to the
amount for such Acquired Entity or Business specified in preceding clause (ii)
multiplied by a percentage, the numerator of which is the number of days in
such fiscal year after the date of the respective acquisition and the
denominator of which is 365 or 366, as the case may be:


 


	
  Fiscal Year Ending

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  25.0 million

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  26.0 million

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  28.0 million

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  30.0 million

  	
   

  



 


(b)           In
addition to the foregoing, in the event that the amount of Capital Expenditures
permitted to be made by the Borrower and its Subsidiaries pursuant to clause
(a)(y) above in any fiscal year of the Borrower (before giving effect to any
increase in such permitted Capital Expenditure amount pursuant to this clause
(b)) is greater than the amount of Capital Expenditures actually made by the
Borrower and its Subsidiaries during such fiscal year, 75% of such excess may
be carried forward and utilized to make Capital Expenditures in the immediately
succeeding fiscal year (it being understood and agreed that (x) no amounts once
carried forward pursuant to this Section 10.07(b) may be carried forward to any
subsequent fiscal year of the Borrower thereafter and (y) any such excess
carried forward to the immediately succeeding fiscal


 


89





















 


year shall be utilized to make Capital Expenditures in
such succeeding fiscal year before the amount set forth opposite such fiscal
year in Section 10.07(a) shall be so utilized).


 


(c)           In
addition to the foregoing, the Borrower and its Subsidiaries may make
additional Capital Expenditures (which Capital Expenditures will not be
included in any determination under Section 10.07(a) or (b)) with the amount of
Net Sale Proceeds received by the Borrower or any of its Subsidiaries from any
sale, transfer or other disposition of assets so long as such Net Sale Proceeds
are reinvested within 360 days following the date of such sale, transfer or
other disposition but only to the extent that such Net Sale Proceeds are not
otherwise required to be applied as a mandatory repayment of Term Loans
pursuant to Section 5.02(e).


 


(d)           In
addition to the foregoing, the Borrower and its Subsidiaries may make
additional Capital Expenditures (which Capital Expenditures will not be
included in any determination under Section 10.07(a) or (b)) with the amount of
Net Cash Proceeds received by the Borrower or any of its Subsidiaries from any
Recovery Event so long as such Net Cash Proceeds are used to replace or restore
any properties or assets in respect of which such Net Cash Proceeds were paid
within 360 days following the date of receipt of such Net Cash Proceeds from
such Recovery Event, but only to the extent that such Net Cash Proceeds are not
otherwise required to be applied as a mandatory repayment and/or commitment
reduction pursuant to Section 5.02(g).


 


(e)           In
addition to the foregoing, the Borrower and its Subsidiaries may make
additional Capital Expenditures (which Capital Expenditures will not be
included in any determination under Section 10.07(a) or (b)) constituting
Permitted Acquisitions effected in accordance with the requirements of Section
9.16.


 


10.08.      Fixed Charge
Coverage Ratio.  The Borrower
will not permit the Fixed Charge Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter of the Borrower set forth below to be less
than the ratio set forth opposite such fiscal quarter below:


 


	
  Fiscal Quarter Ending Closest
  To

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  December 31, 2004

  	
   

  	
  1.10:1.00

  
	
  March 31, 2005

  	
   

  	
  1.10:1.00

  
	
  June 30, 2005

  	
   

  	
  1.10:1.00

  
	
  September 30, 2005

  	
   

  	
  1.10:1.00

  
	
  December 31, 2005

  	
   

  	
  1.10:1.00

  
	
  March 31, 2006

  	
   

  	
  1.10:1.00

  
	
  June 30, 2006

  	
   

  	
  1.10:1.00

  
	
  September 30, 2006

  	
   

  	
  1.10:1.00

  
	
  December 31, 2006

  	
   

  	
  1.10:1.00

  
	
  March 31, 2007

  	
   

  	
  1.25:1.00

  
	
  June 30, 2007

  	
   

  	
  1.25:1.00

  
	
  September 30, 2007

  	
   

  	
  1.25:1.00

  
	
  December 31, 2007

  	
   

  	
  1.25:1.00

  
	
  March 31, 2008

  	
   

  	
  1.50:1.00

  
	
  June 30, 2008

  	
   

  	
  1.50:1.00

  



 


90





















 


	
  Fiscal Quarter Ending Closest
  To

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  September 30, 2008 and each fiscal

  quarter of the Borrower thereafter

  	
   

  	
  1.50:1.00.

  



 


10.09.      Senior Leverage
Ratio.  The Borrower will not
permit the Senior Leverage Ratio at any time during a period set forth below to
be greater than the amount set forth opposite such fiscal quarter below:


 


	
  Period

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  From the Effective Date through and including the
  day before the last day of the Borrower’s fiscal quarter ended June 30, 2005

  	
   

  	
  1.50:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ended
  June 30, 2005 through and including the day before the last day of the
  Borrower’s fiscal quarter ended December 31, 2005

  	
   

  	
  1.25:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ended
  December 31, 2005 through and including the day before the last day of the
  Borrower’s fiscal quarter ended December 31, 2006

  	
   

  	
  1.00:1.00

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  0.75:1.00.

  



 


10.10.      Total Leverage
Ratio.  The Borrower will not
permit the Total Leverage Ratio at any time during a period set forth below to
be greater than the ratio set forth opposite such period below:


 


	
  Period

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  From the Effective Date through and including the
  day before the last day of the Borrower’s fiscal quarter ended December 31,
  2005

  	
   

  	
  2.00:1.00

  
	
   

  	
   

  	
   

  
	
  The last day of the Borrower’s fiscal quarter ended
  December 31, 2005 through and including the day before the last day of the
  Borrower’s fiscal quarter ended December 31, 2006

  	
   

  	
  1.75:1.00

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  1.50:1.00.

  



 


10.11.      Limitations on
Voluntary Payments of Indebtedness, Modifications of Documents, Certificate of
Incorporation, By-Laws and Certain Other Agreements, etc.  The Borrower will not, and will not permit
any of its Subsidiaries to:


 


91





















 


(i)            amend, modify,
change or waive any term or provision of any Tender Offer Document, except to
the extent any such amendment, modification, change or waiver could not
reasonably be expected to be adverse to the interests of the Lenders in any
material respect;


 


(ii)           amend, modify or
change its certificate or articles of incorporation (including, without
limitation, by the filing or modification of any certificate or articles of
designation, other than any certificate of designation relating to Qualified
Preferred Stock or Permitted Disqualified Preferred Stock issued as permitted
herein), certificate of formation, limited liability company agreement or
by-laws (or the equivalent organizational documents), as applicable, or any
agreement entered into by it with respect to its capital stock or other Equity Interests
(including any Shareholders’ Agreement), or enter into any new agreement with
respect to its capital stock or other Equity Interests (other than a Qualified
Preferred Stock Document or a Permitted Disqualified Preferred Stock Document),
unless such amendment, modification, change or other action contemplated by
this clause (ii) could not reasonably be expected to be adverse to the
interests of the Lenders in any material respect;


 


(iii)          on and after the execution and delivery thereof, amend,
modify or waive, or permit the amendment, modification or waiver of, any
provision of any Permitted Subordinated Notes Document, any Shareholder
Subordinated Note, any Qualified Preferred Stock Document or any Permitted
Disqualified Preferred Stock Document, unless such amendment, modification or
waiver contemplated by this clause (iii) could not reasonably be expected to be
adverse to the interests of the Lenders in any respect;


 


(iv)          make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption, repurchase or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for the
purpose of paying when due), or any prepayment or redemption as a result of any
asset sale, change of control or similar event of, any Permitted Subordinated
Notes; provided that, Permitted Exchange Subordinated Notes may be
issued as contemplated by the definition of Permitted Subordinated Notes and
consistent with the definition of Permitted Exchange Subordinated Notes;


 


(v)           make (or give any
notice in respect of) any principal or interest payment on, or any redemption
or acquisition for value of, any Shareholder Subordinated Note, except to the
extent permitted by Section 10.03(v); or


 


(vi)          on and after the
execution and delivery of any Permitted Subordinated Notes Document, designate
any Indebtedness (or related interest obligations) as “Designated Senior Debt”
(or similar term) other than the Obligations.


 


10.12.      Limitation on
Certain Restrictions on Subsidiaries.  The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (a) pay dividends or make any other
distributions on its capital stock or any other interest or participation in
its profits owned by the Borrower or any of its Subsidiaries, or pay


 


92





















 


any
Indebtedness owed to the Borrower or any of its Subsidiaries, (b) make loans or
advances to the Borrower or any of its Subsidiaries or (c) transfer any of its
properties or assets to the Borrower or any of its Subsidiaries, except for
such encumbrances or restrictions existing under or by reason of (i) applicable
law, (ii) this Agreement and the other Credit Documents, (iii) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of the Borrower or any of its Subsidiaries, (iv) customary
provisions restricting assignment of any licensing agreement (in which the
Borrower or any of its Subsidiaries is the licensee) or other contract entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
business, (v) restrictions on the transfer of any asset pending the close
of the sale of such asset, (vi) restrictions on the transfer of any asset
subject to a Lien permitted by Section 10.01(iii), (vi), (vii), (x), (xi)
(solely with respect to contractual landlords Liens and Liens permitted under
subclause (y) thereof), (xv), (xvi) or (xvii)(x), (vii) restrictions applicable
to any Joint Venture that is a Subsidiary existing at the time of the
acquisition thereof as a result of an Investment pursuant to Section 10.05 or a
Permitted Acquisition effected in accordance with Section 9.16, provided
that the restrictions applicable to the respective such Joint Venture are not
made worse, or more burdensome, from the perspective of the Borrower and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition, and (viii)
on and after the execution and delivery thereof, the Permitted Subordinated
Notes Documents.


 


10.13.      Limitation on
Issuance of Equity Interests. 
(a)  The Borrower will not, and
will not permit any of its Subsidiaries to, issue (i) any Preferred Equity
(other than Preferred Equity issued pursuant to clauses (c) and (d) below) or
(ii) any redeemable common stock or other redeemable common Equity Interests
other than common stock or other redeemable common Equity Interests that are
(x) redeemable at the sole option of the Borrower or such Subsidiary, as the
case may be, or (y) “redeemable” as a result of the repayment of Indebtedness
convertible into Equity Interests permitted by Section 10.04, to the extent the
repayment thereof is permitted by Section 10.11.


 


(b)           The
Borrower will not permit any of its Subsidiaries to issue any capital stock or
other Equity Interests (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock
or other Equity Interests, except (i) for transfers and replacements of then
outstanding shares of capital stock or other Equity Interests, (ii) for stock
splits, stock dividends and other issuances which do not decrease the
percentage ownership (determined on a consolidated basis for the Borrower and
its Subsidiaries, taken as a whole) of the Borrower or any of its Subsidiaries
in any class of the capital stock or other Equity Interests of such Subsidiary,
(iii) to qualify directors to the extent required by applicable law, (iv) for
issuances by Subsidiaries of the Borrower which are newly created or acquired
in accordance with the terms of this Agreement, (v) Non-Wholly Owned
Subsidiaries may issue Equity Interests, subject to compliance with Section
5.02(c) and (vi) StayFriends GmbH may issue or sell its Equity Interests to
T-Online International AG, to the extent permitted by Section 10.02(xvii).


 


(c)           The
Borrower may issue Permitted Disqualified Preferred Stock from time to time, so
long as (i) no Default of Event of Default then exists or would exist
immediately after giving effect to the respective issuance, (ii) the aggregate
liquidation preference of any Permitted Disqualified Preferred Stock so issued
pursuant to this Section 10.13(c) shall not exceed, when


 


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aggregated with (I) the aggregate liquidation
preference of all other Permitted Disqualified Preferred Stock issued pursuant
to this Section 10.13(c) after the Effective Date and then outstanding and (II)
the aggregate principal amount of all Permitted Subordinated Notes then outstanding,
the Maximum Junior Capital Amount as then in effect, (iii) calculations are
made by the Borrower demonstrating compliance with the covenants contained in
Sections 10.08, 10.09 and 10.10 for the Calculation Period most recently ended
prior to the date of the respective issuance of Permitted Disqualified
Preferred Stock, determined on a Pro  Forma Basis (after giving
effect to the respective issuance of Permitted Disqualified Preferred Stock),
(iv) calculations are made by the Borrower demonstrating compliance with a
Senior Leverage Ratio of less than 1.00:1.00 at such time, determined on a Pro
Forma Basis (after giving effect to the respective issuance of Permitted
Disqualified Preferred Stock), (v)  the
Net Cash Proceeds from the respective issuance of Permitted Disqualified
Preferred Stock shall be applied to repay Term Loans, as, and to the extent,
required by Section 5.02(c), (vi) same is not issued directly as consideration
in connection with a purchase, acquisition or other investment made by the
Borrower or any of its Subsidiaries and (vii) the Borrower shall have furnished
to the Administrative Agent a certificate from an Authorized Officer of the
Borrower certifying, to the best of his or her knowledge, as to compliance with
the requirements of this Section 10.13(c) and containing the calculations (in
reasonable detail) required by the preceding clauses (iii) and (iv).


 


(d)           The
Borrower may issue Qualified Preferred Stock (x) in payment of regularly
accruing dividends on outstanding shares of Qualified Preferred Stock as
contemplated by Section 10.03(viii) and (y) so long as, with respect to each
other issue of Qualified Preferred Stock, the Borrower receives reasonably
equivalent consideration (as determined in good faith by the Borrower).


 


10.14.      Business;
etc.  The Borrower will not,
and will not permit any of its Subsidiaries to, engage directly or indirectly
in any business other than a Permitted Business.


 


10.15.      Limitation on
Creation of Subsidiaries and Joint Ventures.  (a) The Borrower will not, and will not
permit any of its Subsidiaries to, establish, create or acquire after the
Effective Date any Subsidiary (other than Joint Ventures permitted to be
established in accordance with the requirements of Section 10.15(b)), provided
that (A) the Borrower and its Wholly-Owned Subsidiaries shall be permitted to
establish or create Wholly-Owned Subsidiaries so long as, in each case, (i)
prompt written notice thereof is given to the Administrative Agent, (ii) the
capital stock or other Equity Interests of such new Subsidiary are promptly
pledged pursuant to, and to the extent required by, this Agreement and the
Pledge Agreement and the certificates, if any, representing such stock or other
Equity Interests so required to be pledged, together with stock or other
appropriate powers duly executed in blank, are delivered to the Collateral
Agent, (iii) in the case of a Domestic Subsidiary, such new Domestic Subsidiary
promptly executes a counterpart of the Subsidiaries Guaranty, the Pledge
Agreement and the relevant Security Documents, and (iv) to the extent requested
by the Administrative Agent or the Required Lenders, such new Subsidiary takes
all actions required pursuant to Section 9.12 and (B) Subsidiaries may be
acquired pursuant to Permitted Acquisitions so long as, in each such case (i)
with respect to each Wholly-Owned Domestic Subsidiary acquired pursuant to a
Permitted Acquisition, the actions specified in preceding clause (A) shall be
taken and (ii) with respect to each Subsidiary which is not a Wholly-Owned
Subsidiary and is acquired pursuant to a Permitted Acquisition, all capital
stock or other Equity Interests thereof owned by any Credit


 


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Party shall be pledged
as, and to the extent, required by the Pledge Agreement.  In addition, each new Subsidiary that is
required to execute any Credit Document shall execute and deliver, or cause to
be executed and delivered, all other relevant documentation of the type
described in Section 7 as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Borrowing Date.


 


(b)           In
addition to Subsidiaries of the Borrower created pursuant to preceding clause
(a), the Borrower and its Subsidiaries may establish, acquire or create, and
make Investments in, Non-Wholly Owned Subsidiaries after the Effective Date as
a result of Permitted Acquisitions (subject to the limitations contained in the
definition thereof) and Investments expressly permitted to be made pursuant to
Section 10.05(x), provided that all of the capital stock or other Equity
Interests of each such Non-Wholly Owned Subsidiary shall be pledged by any
Credit Party which owns same as, and to the extent, required by the Pledge
Agreement.


 


10.16.      Cash on Balance Sheet.  The Borrower will not permit the aggregate
amount of Unrestricted cash and Cash Equivalents held by the Borrower and the
Subsidiary Guarantors to be less than $25,000,000 at any time.


 


SECTION 11.         Events of Default.  Upon the occurrence
of any of the following specified events (each, an “Event of Default”):


 


11.01.      Payments.  The
Borrower shall (i) default in the payment when due of any principal of any Term
Loan or any Note or (ii) default, and such default shall continue unremedied
for three or more Business Days, in the payment when due of any interest on any
Term Loan or Note or of any Fees or any other amounts owing hereunder or under
any other Credit Document; or


 


11.02.      Representations, etc.  Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered to the Administrative Agent or any Lender
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or


 


11.03.      Covenants.  The
Borrower or any of its Subsidiaries shall (i) default in the due performance or
observance by it of any term, covenant or agreement contained in Section
9.01(g)(i), 9.08, 9.11, 9.14, 9.15, 9.16 or Section 10 or (ii) default in the
due performance or observance by it of any other term, covenant or agreement
contained in this Agreement (other than those set forth in Sections 11.01 and
11.02) and such default shall continue unremedied for a period of 30 days after
written notice thereof to the defaulting party by the Administrative Agent or
the Required Lenders; or


 


11.04.      Default Under Other Agreements.  (i)  The Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in an instrument
or agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit


 


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the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such Indebtedness
to become due prior to its stated maturity, or (ii) any Indebtedness (other
than the Obligations) of the Borrower or any of its Subsidiaries shall be
declared to be (or shall become) due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided that it shall not be a Default or an Event of
Default under this Section 11.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) and (ii) is at least
$4,000,000; or


 


11.05.      Bankruptcy, etc.  The Borrower 
or any of its Subsidiaries (excluding Insignificant Subsidiaries)
commences a voluntary case concerning itself under Title 11 of the United
States Code entitled “Bankruptcy,” as now or hereafter in effect, or any
successor thereto (the “Bankruptcy Code”); or an involuntary case is
commenced against the Borrower or any of its Subsidiaries (excluding
Insignificant Subsidiaries), and the petition is not controverted within 10
days, or is not dismissed within 60 days after the filing thereof, provided,
however, that during the pendency of such period, each Lender shall be
relieved of its obligation to extender credit hereunder; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any of its Subsidiaries
(excluding Insignificant Subsidiaries), to operate all or any substantial
portion of the business of the Borrower or any of its Subsidiaries (excluding
Insignificant Subsidiaries), or the Borrower or any of its Subsidiaries
(excluding Insignificant Subsidiaries) commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or any of its
Subsidiaries (excluding Insignificant Subsidiaries), or there is commenced
against the Borrower or any of its Subsidiaries (excluding Insignificant
Subsidiaries) any such proceeding which remains undismissed for a period of 60
days after the filing thereof, or the Borrower or any of its Subsidiaries
(excluding Insignificant Subsidiaries) is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or the Borrower or any of its Subsidiaries (excluding Insignificant
Subsidiaries) makes a general assignment for the benefit of creditors; or any
Company action is taken by the Borrower or any of its Subsidiaries (excluding
Insignificant Subsidiaries) for the purpose of effecting any of the foregoing;
or


 


11.06.      ERISA.  (a) Any
Plan shall fail to satisfy the minimum funding standard required for any plan
year or part thereof under Section 412 of the Code or Section 302 of ERISA or a
waiver of such standard or extension of any amortization period is sought or
granted under Section 412 of the Code or Section 303 or 304 of ERISA, a
Reportable Event shall have occurred, a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be
subject to the advance reporting requirement of PBGC Regulation Section 4043.61
(without regard to subparagraph (b)(1) thereof) and an event described in subsection
..62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be
reasonably expected to occur with respect to such Plan within the following 30
days, any Plan which is subject to Title IV of ERISA shall have had or is
likely to have a trustee appointed to administer such Plan, any Plan which is
subject to Title IV of ERISA is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall
have an Unfunded Current Liability, a contribution required to be made with
respect to a Plan or a Foreign Pension Plan has not been timely made, the
Borrower or any Subsidiary of the


 


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Borrower or any ERISA Affiliate has incurred
or is likely to incur any liability to or on account of a Plan under Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA
or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health
plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of the Code or
45 Code of Federal Regulations Section 160.103) under Section 4980B of the Code
and/or the Health Insurance Portability and Accountability Act of 1996, or any
Credit Party has incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a
“default,” within the meaning of Section 4219(c)(5) of ERISA, shall occur with
respect to any Plan; any applicable law, rule or regulation is adopted, changed
or interpreted, or the interpretation or administration thereof is changed, in
each case after the date hereof, by any governmental authority or agency or by
any court (a “Change in Law”), or, as a result of a Change in Law, an
event occurs following a Change in Law, with respect to or otherwise affecting
any Plan; (b) there shall result from any such event or events the imposition
of a lien, the granting of a security interest, or a liability or a material
risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, has had, or could reasonably
be expected to have, a Material Adverse Effect; or


 


11.07.      Security Documents.  Any of the Security Documents shall cease to
be in full force and effect, or shall cease to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral, in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons (except
as otherwise provided therein or as permitted by Section 10.01), and subject to
no other Liens (except as permitted by Section 10.01), or any Credit Party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any such Security
Document and such default shall continue unremedied for a period of 15 days
after the earlier of (x) written notice thereof to the defaulting party by the
Administrative Agent, the Collateral Agent or the Required Lenders or (y) an
executive officer of the defaulting party becoming aware of such default; or


 


11.08.      Subsidiaries Guaranty.  The Subsidiaries Guaranty or any provision
thereof shall cease to be in full force or effect as to any Subsidiary
Guarantor (except as a result of a release of any Subsidiary Guarantor in
accordance with the terms thereof), or any Subsidiary Guarantor or any Person
acting for or on behalf of such Subsidiary Guarantor shall deny or disaffirm
such Subsidiary Guarantor’s obligations under the Subsidiaries Guaranty or any
Subsidiary Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
the Subsidiaries Guaranty; or


 


11.09.      Judgments.  One
or more judgments or decrees shall be entered against the Borrower or any
Subsidiary of the Borrower (excluding Insignificant Subsidiaries) involving in
the aggregate for the Borrower and its Subsidiaries (excluding Insignificant
Subsidiaries) a liability (to the extent not covered by a reputable and solvent
insurance company) and such judgments and decrees shall not be paid, satisfied,
vacated, discharged or stayed or bonded pending appeal for any period of 60
consecutive days, and the aggregate amount of all such judgments equals or
exceeds $3,000,000; or


 


11.10.      Change of Control.  A Change of Control shall occur; or


 


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11.11.      Subordination. 
On and after the execution and delivery of the Permitted Subordinated
Notes Documents and any Shareholder Subordinated Note, (i) the
Permitted Subordinated Notes, any guarantees thereof pursuant to the Permitted
Subordinated Notes
Documents or any Shareholder Subordinated Note shall cease, for any reason, to
be validly subordinated to the Obligations of the Borrower or the Guaranteed
Obligations (as defined in the Subsidiaries Guaranty) of the Subsidiary
Guarantors, as the case may be, as provided in the Permitted Subordinated Notes
Documents or the respective Shareholder Subordinated Note, as the case may be,
or any Credit Party or the holders of at least 25% in aggregate principal
amount of any issue of Permitted Subordinated Notes or of the Shareholder
Subordinated Notes, as the case may be, shall so assert; or (ii) all of the Obligations hereunder
and all obligations of the Credit Parties under the other Credit Documents
(including, without limitation, the Subsidiaries Guaranty) shall fail, or
cease, to be included within the definitions of “Senior Debt” (or similar such
term) and “Designated Senior Debt” included in the subordination provisions
contained in the Permitted Subordinated Notes Documents;


 


then, and in any such event, and at any time
thereafter, if any Event of Default shall then be continuing, the
Administrative Agent, upon the written request of the Required Lenders, shall
by written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any Lender or the
holder of any Note to enforce its claims against any Credit Party (provided
that, if an Event of Default specified in Section 11.05 shall occur with
respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice):  (i) declare the Total Commitment terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately
without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Term Loans and the Notes and all Obligations
owing hereunder and thereunder to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each Credit Party; and (iii)
enforce, as Collateral Agent, all of the Liens and security interests created
pursuant to the Security Documents.


 


SECTION 12.         The Administrative Agent.


 


12.01.      Appointment. 
The Lenders hereby irrevocably designate and appoint Deutsche Bank Trust
Company Americas as Administrative Agent (for purposes of this Section 12 and
Section 13.01, the term “Administrative Agent” also shall include Deutsche Bank
Trust Company Americas in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents.  Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Administrative Agent to take
such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto.  The Administrative
Agent may perform any of its respective duties hereunder by or through its
officers, directors, agents, employees or affiliates.


 


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12.02.      Nature of Duties. 
(a)  The Administrative Agent
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and in the other Credit Documents.  Neither the Administrative Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for
any action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).  The duties of the Administrative Agent shall
be mechanical and administrative in nature; the Administrative Agent shall not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in
this Agreement or in any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.


 


(b)           Notwithstanding
any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arranger is named as such for recognition purposes only, and
in its capacity as such shall have no powers, duties, responsibilities or
liabilities with respect to this Agreement or the other Credit Documents or the
transactions contemplated hereby and thereby; it being understood and agreed
that the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agents as, and to the
extent, provided for under Sections 12.06 and 13.01.  Without limitation of the foregoing, the Lead
Arranger shall not, solely by reason of this Agreement or any other Credit Documents,
have any fiduciary relationship in respect of any Lender or any other Person.


 


12.03.      Lack of Reliance on the Administrative Agent.  Independently and without reliance upon the
Administrative Agent, each Lender and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Borrower and its
Subsidiaries in connection with the making and the continuance of the Term
Loans and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the creditworthiness of the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Term Loans or at any time or times
thereafter.  The Administrative Agent
shall not be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of the Borrower or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of the
Borrower or any of its Subsidiaries or the existence or possible existence of
any Default or Event of Default.


 


12.04.      Certain Rights of the Administrative Agent.  If the Administrative Agent requests
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, the


 


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Administrative Agent shall be entitled to
refrain from such act or taking such action unless and until the Administrative
Agent shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability to any Lender by reason of so
refraining.  Without limiting the
foregoing, neither any Lender nor the holder of any Note shall have any right
of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.


 


12.05.      Reliance.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cablegram, radiogram, order or other
document or telephone message signed, sent or made by any Person that the
Administrative Agent believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent.


 


12.06.      Indemnification.  To the extent the Administrative Agent (or
any affiliate thereof) is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent (and any
affiliate thereof) in proportion to their respective “percentage” as used in
determining the Required Lenders (determined as if there were no Defaulting
Lenders) for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent’s (or
such affiliate’s) gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision).


 


12.07.      The Administrative Agent in its Individual Capacity.  With respect to its obligation to make Term
Loans under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a “Lender” and may exercise the same rights
and powers as though it were not performing the duties specified herein; and
the terms “Lender,” “Required Lenders,” “Supermajority Lenders,”
“holders of Notes” and any similar terms shall, unless the context
clearly indicates otherwise, include the Administrative Agent in its respective
individual capacities.  The
Administrative Agent and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of banking, investment banking, trust or
other business with, or provide debt financing, equity capital or other services
(including financial advisory services) to any Credit Party or any Affiliate of
any Credit Party (or any Person engaged in a similar business with any Credit
Party or any Affiliate thereof) as if they were not performing the duties
specified herein, and may accept fees and other consideration from any Credit
Party or any Affiliate of any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.


 


12.08.      Holders.  The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment,


 


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transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent.  Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of
such Note or of any Note or Notes issued in exchange therefor.


 


12.09.      Resignation by the Administrative Agent.  (a) 
The Administrative Agent may resign from the performance of all its
respective functions and duties hereunder and/or under the other Credit
Documents at any time by giving 15 Business Days’ prior written notice to the
Lenders and, unless a Default or an Event of Default under Section 11.05 then
exists, the Borrower.  Such resignation
shall take effect upon the appointment of a successor Administrative Agent
pursuant to clauses (b) and (c) below or as otherwise provided below.


 


(b)           Upon
any such notice of resignation by the Administrative Agent, the Required
Lenders shall appoint a successor Administrative Agent hereunder or thereunder
who shall be a commercial bank or trust company reasonably acceptable to the
Borrower, which acceptance shall not be unreasonably withheld or delayed (provided
that the Borrower’s approval shall not be required if an Event of Default then
exists).


 


(c)           If
a successor Administrative Agent shall not have been so appointed within such
15 Business Day period, the Administrative Agent, with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed, provided
that the Borrower’s consent shall not be required if a Default or an Event of
Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.


 


(d)           If
no successor Administrative Agent has been appointed pursuant to clause (b) or
(c) above by the 20th Business Day after the date such notice of resignation
was given by the Administrative Agent, the Administrative Agent’s resignation
shall become effective and the Required Lenders shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.


 


(e)           Upon
a resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this
Agreement and the other Credit Documents and the provisions of this Section 12
shall continue in effect for the benefit of the Administrative Agent for all of
its actions and inactions while serving as the Administrative Agent.


 


12.10.      Collateral Matters.  (a)  Each Lender authorizes and
directs the Collateral Agent to enter into the Security Documents for the
benefit of the Lenders and the other Secured Creditors.  Each Lender hereby agrees, and each holder of
any Note by the acceptance thereof will be deemed to agree, that, except as
otherwise set forth herein, any action taken by the Required Lenders in
accordance with the provisions of this Agreement or the Security Documents, and
the exercise by the Required Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and


 


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binding upon all of the Lenders.  The Collateral Agent is hereby authorized on
behalf of all of the Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time prior to an Event of Default, to
take any action with respect to any Collateral or Security Documents which may
be necessary to perfect and maintain perfected the security interest in and
liens upon the Collateral granted pursuant to the Security Documents.


 


(b)           The
Lenders hereby authorize the Collateral Agent, at its option and in its
discretion, to release any Lien granted to or held by the Collateral Agent upon
any Collateral (i) upon termination of the Commitments and payment and
satisfaction of all of the Obligations (other than inchoate indemnification
obligations) at any time arising under or in respect of this Agreement or the
Credit Documents, (ii) constituting property being sold or otherwise disposed
of (to Persons other than the Borrower and its Subsidiaries) upon the sale or
other disposition thereof in compliance with Section 10.02, (iii) if approved,
authorized or ratified in writing by the Required Lenders (or all of the
Lenders hereunder, to the extent required by Section 13.12) or (iv) as
otherwise may be expressly provided in the relevant Security Documents.  Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Collateral Agent’s authority
to release particular types or items of Collateral pursuant to this Section
12.10.


 


(c)           The
Collateral Agent shall have no obligation whatsoever to the Lenders or to any
other Person to assure that the Collateral exists or is owned by any Credit
Party or is cared for, protected or insured or that the Liens granted to the
Collateral Agent herein or pursuant hereto have been properly or sufficiently
or lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to the Collateral Agent in this
Section 12.10 or in any of the Security Documents, it being understood and
agreed that in respect of the Collateral, or any act, omission or event related
thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the
Collateral as one of the Lenders and that the Collateral Agent shall have no
duty or liability whatsoever to the Lenders, except for its gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).


 


12.11.      Delivery of Information. 
The Administrative Agent shall not be required to deliver to any Lender
originals or copies of any documents, instruments, notices, communications or
other information received by the Administrative Agent from any Credit Party,
any Subsidiary, the Required Lenders, any Lender or any other Person under or
in connection with this Agreement or any other Credit Document except (i) as
specifically provided in this Agreement or any other Credit Document and (ii)
as specifically requested from time to time in writing by any Lender with
respect to a specific document, instrument, notice or other written
communication received by and in the possession of the Administrative Agent at the
time of receipt of such request and then only in accordance with such specific
request.


 


SECTION 13.         Miscellaneous.


 


13.01.      Payment of Expenses, etc.  The Borrower hereby agrees to:  (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable


 


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fees and disbursements of White & Case
LLP) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of the Administrative Agent and its Affiliates in connection
with its or their syndication efforts with respect to this Agreement and of the
Administrative Agent and, after the occurrence of an Event of Default, each of
the Lenders in connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein or
in connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a “work-out” or pursuant to any
insolvency or bankruptcy proceedings (including, in each case without
limitation, the reasonable fees and disbursements of counsel and consultants
for the Administrative Agent and, after the occurrence of an Event of Default,
counsel for each of the Lenders); (ii) pay and hold the Administrative Agent
and each of the Lenders harmless from and against any and all present and
future stamp, excise and other similar documentary taxes with respect to the
foregoing matters and save the Administrative Agent and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to the
Administrative Agent or such Lender) to pay such taxes; and (iii) indemnify the
Administrative Agent and each Lender, and each of their respective officers,
directors, employees, representatives, agents, affiliates, trustees and
investment advisors from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto and whether or not such
investigation, litigation or other proceeding is brought by or on behalf of any
Credit Party) related to the entering into and/or performance of this Agreement
or any other Credit Document or the proceeds of any Term Loans hereunder or the
consummation of the Transaction or any other transactions contemplated herein
or in any other Credit Document or the exercise of any of their rights or
remedies provided herein or in the other Credit Documents, or (b) the actual or
alleged presence of Hazardous Materials in the air, surface water or groundwater
or on the surface or subsurface of any Real Property at any time owned, leased
or operated by the Borrower or any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials by the
Borrower or any of its Subsidiaries at any location, whether or not owned,
leased or operated by the Borrower or any of its Subsidiaries, the
non-compliance by the Borrower or any of its Subsidiaries with any
Environmental Law (including applicable permits thereunder) applicable to any
Real Property, or any Environmental Claim asserted against the Borrower, any of
its Subsidiaries or any Real Property at any time owned, leased or operated by
the Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other indemnified matter (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to indemnify,
pay or hold harmless the Administrative Agent or any Lender set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrower shall make the maximum contribution


 


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to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.


 


13.02.      Right of Setoff. 
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
the Administrative Agent or such Lender (including, without limitation, by
branches and agencies of the Administrative Agent or such Lender wherever
located) to or for the credit or the account of the Borrower or any other
Credit Party against and on account of the Obligations and liabilities of the
Credit Parties to the Administrative Agent or such Lender under this Agreement
or under any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Lender pursuant to Section 13.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or
not the Administrative Agent or such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.


 


13.03.      Notices.  Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
telecopier or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered:  if to
any Credit Party, at the address specified opposite its signature below or in
the other relevant Credit Documents; if to any Lender, at its address specified
on Schedule II; and if to the Administrative Agent, at the Notice Office; or,
as to any Credit Party or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Lender, at such other address as shall be designated by
such Lender in a written notice to the Borrower and the Administrative
Agent.  All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.


 


13.04.      Benefit of Agreement; Assignments; Participations.  (a) 
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto; provided,
however, the Borrower may not assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the
Lenders and, provided further, that, although any Lender may transfer,
assign or grant participations in its rights hereunder, such Lender shall
remain a “Lender” for all purposes hereunder (and may not transfer or assign
all or any portion of its Commitments hereunder except as provided in Sections
2.13 and 13.04(b)) and the transferee, assignee or participant, as the case may
be, shall not constitute a “Lender” hereunder and, provided further,
that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Term Loan or Note
in which such


 


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participant is participating, or reduce the
rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant’s participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment shall not constitute a change in
the terms of such participation, and that an increase in any Commitment (or the
available portion thereof) or Term Loan shall be permitted without the consent
of any participant if the participant’s participation is not increased as a
result thereof), (ii) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Credit Documents) supporting the Term Loans
hereunder in which such participant is participating.  In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant’s rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.


 


(b)           Notwithstanding
the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related
outstanding Obligations (or, if the Commitments have terminated, outstanding
Obligations) hereunder to (i)(A) its parent company and/or any affiliate of
such Lender which is at least 50% owned by such Lender or its parent company or
(B) to one or more other Lenders or any affiliate of any such other Lender
which is at least 50% owned by such other Lender or its parent company (provided
that any fund that invests in loans in the ordinary course of its business and
is managed or advised by the same investment advisor of another fund which is a
Lender (or by an Affiliate of such investment advisor) shall be treated as an
affiliate of such other Lender for the purposes of this sub-clause (x)(i)(B)),
or (ii) in the case of any Lender that is a fund that invests in loans, any
other fund that invests in loans in the ordinary course of its business and is
managed or advised by the same investment advisor of any Lender or by an
Affiliate of such investment advisor or (y) assign all, or if less than all, a
portion equal to at least $1,000,000 in the aggregate for the assigning Lender
or assigning Lenders, of such Commitments and related outstanding Obligations
(or, if the Commitments have terminated, outstanding Obligations) hereunder to
one or more Eligible Transferees (treating any fund that invests in loans in
the ordinary course of its business and any other fund that invests in loans in
the ordinary course of its business and is managed or advised by the same
investment advisor of such fund or by an Affiliate of such investment advisor
as a single Eligible Transferee), each of which assignees shall become a party
to this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, provided that (i) at such time, Schedule I shall be deemed
modified to reflect the Commitments and/or outstanding Term Loans, as the case
may be, of such new Lender and of the existing Lenders, (ii) upon the surrender
of the relevant Notes by the assigning Lender (or, upon such assigning Lender’s
delivery to the Borrower of an affidavit of loss with respect thereto and
indemnifying the Borrower for any lost Note pursuant to a customary
indemnification agreement) new Notes will be issued, at the Borrower’s expense,
to such new Lender and to the assigning Lender upon the request of such new
Lender or assigning Lender, such new Notes to be in conformity with the
requirements of Section 2.05 (with appropriate modifications) to the extent
needed to reflect the revised Commitments and/or outstanding Term Loans, as the
case may be, (iii) the consent of the Administrative Agent shall be required in


 


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connection with any such assignment pursuant to clause
(y) above (which consent shall not be unreasonably withheld or delayed), (iv)
the Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Lender, the payment of a non-refundable assignment
fee of $3,500 and (v) no such transfer or assignment will be effective until
recorded by the Administrative Agent on the Register pursuant to Section 13.15.  To the extent of any assignment pursuant to
this Section 13.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments and outstanding
Term Loans.  At the time of each assignment
pursuant to this Section 13.04(b) to a Person which is not already a Lender
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall, to the extent legally entitled to do so,
provide to the Borrower the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 5.04(b)(ii) Certificate) described in Section
5.04(b).  To the extent that an
assignment of all or any portion of a Lender’s Commitments and related
outstanding Obligations pursuant to Section 2.13 or this Section 13.04(b)
would, at the time of such assignment, result in increased costs under Section
2.10 or 5.04 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).


 


(c)           Nothing
in this Agreement shall prevent or prohibit any Lender from pledging its Term
Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings
made by such Lender from such Federal Reserve Bank and, with prior notification
to the Administrative Agent (but without the consent of the Administrative
Agent or the Borrower), any Lender which is a fund may pledge all or any
portion of its Term Loans and Notes to its trustee or to a collateral agent
providing credit or credit support to such Lender in support of its obligations
to such trustee, such collateral agent or a holder of such obligations, as the
case may be.  No pledge pursuant to this
clause (c) shall release the transferor Lender from any of its obligations
hereunder.


 


13.05.      No Waiver; Remedies Cumulative.  No failure or delay on the part of the
Administrative Agent, the Collateral Agent or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Borrower or any other Credit Party and the
Administrative Agent, the Collateral Agent or any Lender shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder.  The rights,
powers and remedies herein or in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent or any Lender would otherwise
have.  No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of the Administrative Agent, the Collateral Agent or any Lender to
any other or further action in any circumstances without notice or demand.


 


13.06.      Payments Pro Rata.  (a) 
Except as otherwise provided in this Agreement, the Administrative Agent
agrees that promptly after its receipt of each payment from or on


 


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behalf of the Borrower in respect of any
Obligations hereunder, the Administrative Agent shall distribute such payment
to the Lenders entitled thereto (other than any Lender that has consented in
writing to waive its pro  rata share of any such payment) pro
rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.


 


(b)           Each
of the Lenders agrees that, if it should receive any amount hereunder (whether
by voluntary payment, by realization upon security, by the exercise of the right
of setoff or banker’s lien, by counterclaim or cross action, by the enforcement
of any right under the Credit Documents, or otherwise), which is applicable to
the payment of the principal of, or interest on, the Term Loans, of a sum which
with respect to the related sum or sums received by other Lenders is in a
greater proportion than the total of such Obligation then owed and due to such
Lender bears to the total of such Obligation then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of
such excess amount is thereafter recovered from such Lenders, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.


 


(c)           Notwithstanding
anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this
Agreement which require, or permit, differing payments to be made to Non-Defaulting
Lenders as opposed to Defaulting Lenders.


 


13.07.      Calculations; Computations.  (a)  The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); provided that, to the extent expressly
provided herein, certain calculations shall be made on a Pro  Forma
Basis.


 


(b)           All
computations of interest and other Fees hereunder shall be made on the basis of
a year of 360 days (except for interest calculated by reference to the Prime
Lending Rate, which shall be based on a year of 365 or 366 days, as applicable)
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or Fees are payable.


 


13.08.      GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. 
(a)  THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. 
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH
ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY 


 


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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS.  THE BORROWER HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDICTION OVER THE BORROWER.  THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. 
THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.


 


(b)           THE
BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.


 


(c)           EACH
OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.


 


13.09.      Counterparts. 
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. 
A set of counterparts executed by all the parties hereto shall be lodged
with the Borrower and the Administrative Agent.


 


13.10.      Execution. 
This Agreement shall be fully executed on the date (the “Execution
Date”) on which the Borrower, the Administrative Agent, the Lead Arranger
and each of the Lenders shall have signed a counterpart hereof (whether the
same or different


 


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counterparts) and shall have delivered the
same to the Administrative Agent at the Notice Office or, in the case of the
Lenders, shall have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) at such office that the
same has been signed and mailed to it. 
The Administrative Agent will give the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.


 


13.11.      Headings Descriptive.  The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.


 


13.12.      Amendment or Waiver; etc.  (a) 
Neither this Agreement nor any other Credit Document nor any terms
hereof or thereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the respective
Credit Parties party hereto or thereto and the Required Lenders (although
additional parties may be added to (and annexes may be modified to reflect such
additions), and Subsidiaries of the Borrower may be released from, the
Subsidiaries Guaranty and the Security Documents in accordance with the
provisions hereof and thereof without the consent of the other Credit Parties
party thereto or the Required Lenders), provided that no such change,
waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender) (with Obligations being directly affected in
the case of following clause (i)), (i) extend the final scheduled maturity of
any Term Loan or Note beyond the Maturity Date, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with the
waiver of applicability of any post-default increase in interest rates), or
reduce the principal amount thereof, (ii) release all or substantially all of
the Collateral (except as expressly provided in the Credit Documents) under all
the Security Documents, (iii) amend, modify or waive any provision of this
Section 13.12 (except for technical amendments with respect to additional
extensions of credit pursuant to this Agreement which afford the protections to
such additional extensions of credit of the type provided to the Term Loans on
the Effective Date), (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans are included on the Effective Date) or
(v) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement; provided further, that no such
change, waiver, discharge or termination shall (1) increase the Commitments of
any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Lender), (2) without the consent of the Administrative Agent, amend, modify
or waive any provision of Section 12 or any other provision as same relates to
the rights or obligations of the Administrative Agent, (3) without the consent
of Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, or (4) reduce the amount of, or
extend the date of, any Scheduled Repayment without the consent of the
Supermajority Lenders, or amend the definition of Supermajority Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Supermajority Lenders on substantially the same basis as
the extensions of Term Loans are included on the Effective Date) without the
consent of the Supermajority Lenders.


 


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(b)           If,
in connection with any proposed change, waiver, discharge or termination of any
of the provisions of this Agreement as contemplated by clauses (i) through (v),
inclusive, of the first proviso to Section 13.12(a), the consent of the
Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all non-consenting Lenders whose individual consent is
required are treated as described in either clauses (A) or (B) below, to either
(A) replace each such non-consenting Lender or Lenders with one or more
Replacement Lenders pursuant to Section 2.13 so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) repay all outstanding Term Loans of
such Lender in accordance with Section 5.01(b), provided that, unless
the Term Loans that are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Term Loans of existing Lenders
(who in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) the Required Lenders (determined after
giving effect to the proposed action) shall specifically consent thereto, provided
further, that in any event the Borrower shall not have the right to replace
a Lender, terminate its Commitments or repay its Term Loans solely as a result
of the exercise of such Lender’s rights (and the withholding of any required
consent by such Lender) pursuant to the second proviso to Section 13.12(a).


 


13.13.      Survival.  All
indemnities set forth herein including, without limitation, in Sections 2.10,
2.11, 5.04, 12.06 and 13.01 shall survive the execution, delivery and
termination of this Agreement and the Notes and the making and repayment of the
Obligations.


 


13.14.      Domicile of Term Loans.  Each Lender
may transfer and carry its Term Loans at, to or for the account of any office,
Subsidiary or Affiliate of such Lender. 
Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Term Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 2.10, 2.11
or 5.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the
respective transfer).


 


13.15.      Register.  The
Borrower hereby designates the Administrative Agent to serve as its agent,
solely for purposes of this Section 13.15, to maintain a register (the “Register”)
on which it will record the Commitments from time to time of each of the
Lenders, the Term Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Term Loans of each Lender.  Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in
respect of such Term Loans.  With respect
to any Lender, the transfer of the Commitments of such Lender and the rights to
the principal of, and interest on, any Term Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Term Loans and prior to such recordation all amounts owing
to the transferor with respect to such Commitments and Term Loans shall remain
owing to the transferor.  The
registration of assignment or transfer of all or part of any Commitments and
Term Loans shall be recorded by the Administrative Agent on the Register only
upon the acceptance by the Administrative Agent of a properly executed and
delivered


 


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Assignment and Assumption Agreement pursuant
to Section 13.04(b).  Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative
Agent for acceptance and registration of assignment or transfer of all or part
of a Term Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note (if any) evidencing such Term Loan,
and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Lender and/or the new Lender at
the request of any such Lender.  The
Borrower agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.15.


 


13.16.      Confidentiality.  (a) 
Subject to the provisions of clause (b) of this Section 13.16, each
Lender agrees that it will not disclose without the prior consent of the
Borrower (other than to its employees, auditors, advisors or counsel or to another
Lender if such Lender or such Lender’s holding or parent company in its sole
discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender) any information with respect
to the Borrower or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document, provided
that any Lender may disclose any such information (i) as has become generally
available to the public other than by virtue of a breach of this Section
13.16(a) by the respective Lender or its affiliate, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal, state
or Federal regulatory body having or claiming to have jurisdiction over such
Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (iii) as may be required or appropriate in
respect to any summons or subpoena or in connection with any litigation, (iv)
in order to comply with any law, order, regulation or ruling applicable to such
Lender, (v) to the Administrative Agent or the Collateral Agent, (vi) to any
direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty’s professional advisor), so
long as such contractual counterparty (or such professional advisor) agrees to
be bound by the provisions of this Section 13.16 and (vii) to any prospective
or actual transferee or participant in connection with any contemplated
transfer or participation of any of the Notes or Commitments or any interest
therein by such Lender, provided that such prospective transferee agrees
to be bound by the confidentiality provisions contained in this Section 13.16.


 


(b)           The
Borrower hereby acknowledges and agrees that each Lender may share with any of
its affiliates, and such affiliates may share with such Lender, any information
related to the Borrower or any of its Subsidiaries (including, without
limitation, any non-public customer information regarding the creditworthiness
of the Borrower and its Subsidiaries), provided such Persons shall be
subject to the provisions of this Section 13.16 to the same extent as such
Lender.


 


13.17.      Special Provisions Regarding Pledges of Equity
Interests in, and Promissory Notes Owed by, Persons Not Organized in the United
States.  The parties hereto
acknowledge and agree that the provisions of the various Security Documents
executed and delivered by the Credit Parties require that, among other things,
all promissory notes executed by, and capital stock and other Equity Interests
in, various Persons owned by the respective


 


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Credit Party be pledged, and delivered for
pledge, pursuant to the Security Documents. 
The parties hereto further acknowledge and agree that each Credit Party
shall be required to take all actions under the laws of the jurisdiction in
which such Credit Party is organized to create and perfect all security
interests granted pursuant to the various Security Documents and to take all
actions under the laws of the United States and any State thereof to perfect
the security interests in the capital stock and other Equity Interests of, and
promissory notes issued by, any Person organized under the laws of said
jurisdictions (in each case, to the extent said capital stock, other Equity
Interests or promissory notes are owned by any Credit Party).  Except as provided in the immediately
preceding sentence, to the extent any Security Document requires or provides
for the pledge of promissory notes issued by, or capital stock or other Equity
Interests in, any Person organized under the laws of a jurisdiction other than
those specified in the immediately preceding sentence, it is acknowledged that,
as of the Borrowing Date, no actions have been required to be taken to perfect,
under local law of the jurisdiction of the Person who issued the respective
promissory notes or whose capital stock or other Equity Interests are pledged,
under the Security Documents.  The
Borrower hereby agrees that, following any request by the Administrative Agent
or Required Lenders to do so, the Borrower shall, and shall cause its
Subsidiaries to, take such actions under the local law of any jurisdiction with
respect to which such actions have not already been taken as are determined by
the Administrative Agent or Required Lenders to be reasonably necessary or
desirable in order to fully perfect, preserve or protect the security interests
granted pursuant to the various Security Documents under the laws of such
jurisdictions.  If requested to do so
pursuant to this Section 13.17, all such actions shall be taken in accordance
with the provisions of this Section 13.17 and Section 9.12 and within the time
periods set forth therein.  All
conditions and representations contained in this Agreement and the other Credit
Documents shall be deemed modified to the extent necessary to effect the
foregoing and so that same are not violated by reason of the failure to take
actions under local law (but only with respect to capital stock of, other
Equity Interests in, and promissory notes issued by, Persons organized under
laws of jurisdictions other than the United States and any State thereof) not
required to be taken in accordance with the provisions of this Section 13.17,
provided that to the extent any representation or warranty would not be true because
the foregoing actions were not taken, the respective representation of
warranties shall be required to be true and correct in all material respects at
such time as the respective action is required to be taken in accordance with
the foregoing provisions of this Section 13.17.


 


13.18.      Limitation on Additional Amounts, etc.  Notwithstanding anything to the contrary
contained in Section 2.10, 2.11 or 5.04 of this Agreement, unless a Lender
gives notice to the Borrower that it is obligated to pay an amount under such
Section within six months after the later of (x) the date the Lender incurs the
respective increased costs, Taxes, loss, expense or liability, reduction in
amounts received or receivable or reduction in return on capital or (y) the
date such Lender has actual knowledge of its incurrence of the respective
increased costs, Taxes, loss, expense or liability, reductions in amounts
received or receivable or reduction in return on capital, then such Lender
shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 2.10, 2.11 or 5.04, as the case may be, to the extent
of the costs, Taxes, loss, expense or liability, reduction in amounts received
or receivable or reduction in return on capital that are incurred or suffered
on or after the date which occurs six months prior to such Lender giving notice
to the Borrower that it is obligated to pay the respective amounts pursuant to
said Section 2.10, 2.11 or 5.04, as the case may be.  This Section 13.18 shall


 


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have no applicability to any Section of this
Agreement other than said Sections 2.10, 2.11 or 5.04.


 


13.19.      Post-Closing
Actions.  Notwithstanding anything to
the contrary contained in this Agreement or the other Credit Documents, the
parties hereto acknowledge and agree that:


 


(a)           (i)  The Credit Parties are not required to have
filed (or cause to have filed) on or prior to the Borrowing Date Financing
Statements (on Form UCC-1) or amendments thereto (on Form UCC-3) necessary to
perfect the security interests purported to be created by the Security
Agreement or the Pledge Agreement and (ii) not later than the 7th
day after the Borrowing Date (or such longer period as the Administrative Agent
shall agree to in its sole discretion), the Credit Parties shall have filed (or
cause to have filed) all of such Financing Statements (Form UCC-1) or
amendments thereto (on Form UCC-3) necessary to perfect the security interest
purported to be created by the Security Agreement and the Pledge Agreement.


 


(b)           (i)
None of NetZero, Inc., Juno Online Services, Inc. and Classmates International,
Inc. is required to deliver the certificates evidencing the capital stock of
Juno India, StayFriends GmbH or Klassträffen Sweden AB, as the case may
be,  pledged pursuant to the Pledge
Agreement and (ii) within 15 days following the Borrowing Date (or such longer
period as the Administrative Agent shall agree to in its sole discretion), the
respective Subsidiary of the Borrower shall deliver its relevant certificate to
the Collateral Agent pursuant to the Pledge Agreement.


 


(c)           The
Borrower and each relevant Subsidiary shall use commercially reasonable efforts
to obtain and deliver to the Collateral Agent fully executed landlord waivers
and/or bailee agreements in respect of those Leaseholds designated as “Leaseholds
Subject to Landlord Waivers” on Schedule III hereto, each of which landlord
waivers and/or bailee agreements shall be in form and substance reasonably
satisfactory to the Collateral Agent.


 


(d)           Within
90 days after the Borrowing Date, the Borrower shall have caused the
organizational documents of Juno India to be amended to eliminate all
prohibitions and restrictions on the pledge, assignment or transfer of Equity
Interests of Juno India (including, without limitation, (i) any requirement of
notice of such pledge, transfer or assignment, (ii) any right of first refusal
in favor of existing shareholders and (iii) any prohibition on such pledge,
assignment or transfer without the sanction of the board of directors of Juno
India).


 


(e)           The
Borrower shall have used commercially reasonable efforts to obtain Form UCC-3
termination statements reasonably satisfactory to the Administrative Agent in
respect of the Liens marked with an asterisk on Schedule VII hereto and caused
same to be filed in the appropriate governmental office within 60 days
following the Borrowing Date (or such longer period as the Administrative Agent
shall agree to in its sole discretion).


 


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(f)            Within 45 days following the Borrowing Date,
NetZero, Inc. shall have closed, or delivered to the Collateral Agent “control”
agreements (in the form required by Section 3.2(b)(i) of the Pledge Agreement
and otherwise in form and substance reasonably satisfactory to the Collateral
Agent) with respect to, its securities accounts numbered CP-12695-G2, 19-78710,
19-78C87 and 19-21764 maintained with UBS or Morgan Stanley, as the case may
be.


 


All conditions precedent
and representations contained in this Agreement and the other Credit Documents
shall be deemed modified to the extent necessary to effect the foregoing (and
to permit the taking of the actions described above within the time periods
required above, rather than as elsewhere provided in the Credit Documents), provided
that (x) to the extent any representation and warranty would not be true
because the foregoing actions were not taken on the Borrowing Date, the
respective representation and warranty shall be required to be true and correct
in all material respects at the time the respective action is taken (or was
required to be taken) in accordance with the foregoing provisions of this
Section 13.19 and (y) all representations and warranties relating to the
Security Documents shall be required to be true immediately after the actions
required to be taken by Section 13.19 have been taken (or were required to be
taken).  The incurrence of Term Loans on
the Borrowing Date shall constitute a representation, warranty and covenant by the
Borrower to each of the Lenders that the actions required pursuant to this
Section 13.19 will be, or have been, taken within the relevant time periods
referred to in this Section 13.19 and that, at such time, all representations
and warranties contained in this Agreement and the other Credit Documents shall
then be true and correct without any modification pursuant to this Section
13.19, and the parties hereto acknowledge and agree that the failure to take
any of the actions required above, within the relevant time periods required
above, shall give rise to an immediate Event of Default pursuant to this
Agreement.


 


*     *    
*


 


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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.


 


Address:


 


	
  21301 Burbank Blvd.

  	
  UNITED ONLINE, INC.

  
	
  Woodland Hills, California 91367

  	
   

  
	
  Attention: General Counsel

  	
   

  
	
  Telephone No.:  (818) 287-3000

  	
   

  
	
  Telecopier No.: (818) 287-3010

  	
   

  
	
   

  	
  By: 

  	
  /s/ Charles S. Hilliard

  
	
   

  	
   

  	
  Name: 

  	
  Charles S. Hilliard

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President, Finance

  and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY 

  
	
   

  	
  AMERICAS, Individually and as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Anca Trifan

  
	
   

  	
   

  	
  Name: 

  	
  Anca Trifan

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK SECURITIES INC., as

  
	
   

  	
  Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Nicholas Hayes

  
	
   

  	
   

  	
  Name: 

  	
  Nicholas Hayes

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Daniel Toscano

  
	
   

  	
   

  	
  Name: 

  	
  Daniel Toscano

  
	
   

  	
   

  	
  Title:

  	
  Managing Director