Exhibit 10.1





Exhibit 10.1



EXECUTION VERSION





CREDIT AND GUARANTY AGREEMENT




dated as of October 12, 2011




among




DIGITALGLOBE, INC.,




The GUARANTORS Referred to Herein




The LENDERS Referred to Herein




MORGAN STANLEY SENIOR FUNDING, INC.

and

J.P. MORGAN SECURITIES LLC,

as Joint Lead Arrangers and Joint Lead Bookrunners,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Collateral Agent,




 






$600,000,000 Senior Secured Credit Facilities




 





 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1

	Definitions and Interpretations

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Accounting Terms; Certain Pro Forma Adjustments
	 	 	41	 
	Section 1.03. Interpretation, Etc.
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 2

	Loans and Letters of Credit

	 
	 	 	 	 
	Section 2.01. Term Loans
	 	 	42	 
	Section 2.02. Revolving Loans
	 	 	43	 
	Section 2.03. Swing Line Loans
	 	 	44	 
	Section 2.04. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	45	 
	Section 2.05. Pro Rata Shares; Availability of Funds
	 	 	50	 
	Section 2.06. Use of Proceeds
	 	 	51	 
	Section 2.07. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	51	 
	Section 2.08. Interest on Loans
	 	 	52	 
	Section 2.09. Conversion/Continuation
	 	 	54	 
	Section 2.10. Default Interest
	 	 	54	 
	Section 2.11. Fees
	 	 	55	 
	Section 2.12. Scheduled Payments/Commitment Reductions
	 	 	56	 
	Section 2.13. Voluntary Prepayments/Commitment Reductions
	 	 	56	 
	Section 2.14. Mandatory Prepayments/Commitment Reductions
	 	 	59	 
	Section 2.15. Application of Prepayments/Reductions
	 	 	60	 
	Section 2.16. General Provisions Regarding Payments
	 	 	61	 
	Section 2.17. Ratable Sharing
	 	 	62	 
	Section 2.18. Making or Maintaining Eurodollar Rate Loans
	 	 	63	 
	Section 2.19. Increased Costs; Capital Adequacy
	 	 	65	 
	Section 2.20. Taxes; Withholding, Etc.
	 	 	66	 
	Section 2.21. Defaulting Lenders
	 	 	69	 
	Section 2.22. Obligation to Mitigate; Removal or Replacement of a Lender
	 	 	71	 
	Section 2.23. Incremental Facilities
	 	 	72	 
	Section 2.24. Notices
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 3

	Conditions Precedent

	 
	 	 	 	 
	Section 3.01. Closing Date
	 	 	74	 
	Section 3.02. Conditions to Each Credit Extension
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 4

	Representations and Warranties

	 
	 	 	 	 
	Section 4.01. Organization; Requisite Power and Authority; Qualification
	 	 	77	 
	Section 4.02. Equity Interests and Ownership
	 	 	78	 
	Section 4.03. Due Authorization
	 	 	78	 






 


i









 





	 	 	 	 	 
	Section 4.04. No Conflict
	 	 	78	 
	Section 4.05. Governmental Consents
	 	 	78	 
	Section 4.06. Binding Obligation
	 	 	78	 
	Section 4.07. Historical Financial Statements
	 	 	79	 
	Section 4.08. Projections
	 	 	79	 
	Section 4.09. No Material Adverse Effect
	 	 	79	 
	Section 4.10. Adverse Proceedings, Etc
	 	 	79	 
	Section 4.11. Payments of Taxes
	 	 	79	 
	Section 4.12. Properties
	 	 	80	 
	Section 4.13. Environmental Matters
	 	 	80	 
	Section 4.14. No Defaults
	 	 	80	 
	Section 4.15. Material Contracts
	 	 	80	 
	Section 4.16. Governmental Regulation
	 	 	80	 
	Section 4.17. Employee Matters
	 	 	81	 
	Section 4.18. Employee Benefit Plans
	 	 	82	 
	Section 4.19. Certain Fees
	 	 	82	 
	Section 4.20. Solvency
	 	 	82	 
	Section 4.21. Tender Offer Documents
	 	 	82	 
	Section 4.22. Compliance with Statutes, Etc
	 	 	83	 
	Section 4.23. Disclosure
	 	 	83	 
	Section 4.24. PATRIOT Act
	 	 	83	 
	Section 4.25. Sanctioned Persons
	 	 	83	 
	Section 4.26. Federal Reserve Regulations
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 5

	Affirmative Covenants

	 
	 	 	 	 
	Section 5.01. Financial Statements and Other Reports
	 	 	84	 
	Section 5.02. Existence
	 	 	87	 
	Section 5.03. Payment of Taxes and Claims
	 	 	87	 
	Section 5.04. Maintenance of Properties
	 	 	87	 
	Section 5.05. Insurance
	 	 	87	 
	Section 5.06. Books and Records; Inspections
	 	 	89	 
	Section 5.07. Lenders’ Meetings
	 	 	89	 
	Section 5.08. Compliance with Laws
	 	 	90	 
	Section 5.09. Environmental
	 	 	90	 
	Section 5.10. Subsidiaries
	 	 	90	 
	Section 5.11. Additional Material Real Estate Assets
	 	 	91	 
	Section 5.12. Further Assurances
	 	 	91	 
	Section 5.13. Maintenance of Ratings
	 	 	91	 
	Section 5.14. Designation Of Restricted And Unrestricted Subsidiaries
	 	 	91	 
	 
	 	 	 	 
	ARTICLE 6

	Negative Covenants

	 
	 	 	 	 
	Section 6.01. Indebtedness
	 	 	93	 
	Section 6.02. Liens
	 	 	95	 
	Section 6.03. No Further Negative Pledges
	 	 	98	 
	Section 6.04. Restricted Junior Payments
	 	 	98	 
	Section 6.05. Restrictions on Subsidiary Distributions
	 	 	99	 






 


ii









 





	 	 	 	 	 
	Section 6.06. Investments
	 	 	101	 
	Section 6.07. Fundamental Changes; Acquisitions
	 	 	102	 
	Section 6.08. Disposition of Assets
	 	 	103	 
	Section 6.09. Transactions with Shareholders and Affiliates
	 	 	103	 
	Section 6.10. Conduct of Business
	 	 	103	 
	Section 6.11. Amendments or Waivers of Organizational Documents and Tender Offer Documents
	 	 	104	 
	Section 6.12. Amendments or Waivers of with Respect to Certain Indebtedness
	 	 	104	 
	Section 6.13. Fiscal Year
	 	 	104	 
	 
	 	 	 	 
	ARTICLE 7

	Financial Covenants

	 
	 	 	 	 
	Section 7.01. Interest Coverage Ratio
	 	 	104	 
	Section 7.02. Leverage Ratio
	 	 	104	 
	 
	 	 	 	 
	ARTICLE 8

	Guaranty

	 
	 	 	 	 
	Section 8.01. Guaranty of the Obligations
	 	 	104	 
	Section 8.02. Payment by Guarantors
	 	 	105	 
	Section 8.03. Liability of Guarantors Absolute
	 	 	105	 
	Section 8.04. Waivers by Guarantors
	 	 	107	 
	Section 8.05. Guarantors’ Rights of Subrogation, Contribution, Etc
	 	 	108	 
	Section 8.06. Subordination of Other Obligations
	 	 	108	 
	Section 8.07. Continual Guaranty
	 	 	108	 
	Section 8.08. Authority of Guarantors or Borrower
	 	 	109	 
	Section 8.09. Financial Condition of Borrower
	 	 	109	 
	Section 8.10. Bankruptcy, Etc
	 	 	109	 
	Section 8.11. Discharge of Guaranty Upon Sale of Guarantor
	 	 	110	 
	 
	 	 	 	 
	ARTICLE 9

	Events Of Default

	 
	 	 	 	 
	Section 9.01. Events of Default
	 	 	110	 
	 
	 	 	 	 
	ARTICLE 10

	Agents

	 
	 	 	 	 
	Section 10.01. Appointment of Agents
	 	 	113	 
	Section 10.02. Powers and Duties
	 	 	113	 
	Section 10.03. General Immunity
	 	 	114	 
	Section 10.04. Agents Entitled to Act as Lender
	 	 	116	 
	Section 10.05. Lenders’ Representations, Warranties and Acknowledgment
	 	 	116	 
	Section 10.06. Right to Indemnity
	 	 	116	 
	Section 10.07. Successor Administrative Agent, Collateral Agent and Swing Line Lender
	 	 	117	 
	Section 10.08. Collateral Documents and Guaranty
	 	 	118	 






 


iii









 





	 	 	 	 	 
	ARTICLE 11

	Miscellaneous

	 
	 	 	 	 
	Section 11.01. Notices
	 	 	119	 
	Section 11.02. Expenses
	 	 	121	 
	Section 11.03. Indemnity
	 	 	122	 
	Section 11.04. Set-Off
	 	 	123	 
	Section 11.05. Amendments and Waivers
	 	 	123	 
	Section 11.06. Successors and Assigns; Participations
	 	 	127	 
	Section 11.07. Independence of Covenants
	 	 	131	 
	Section 11.08. Survival of Representations, Warranties and Agreements
	 	 	131	 
	Section 11.09. No Waiver; Remedies Cumulative
	 	 	131	 
	Section 11.10. Marshalling; Payments Set Aside
	 	 	132	 
	Section 11.11. Severability
	 	 	132	 
	Section 11.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	132	 
	Section 11.13. Headings
	 	 	132	 
	Section 11.14. APPLICABLE LAW
	 	 	132	 
	Section 11.15. CONSENT TO JURISDICTION
	 	 	133	 
	Section 11.16. Waiver of Jury Trial
	 	 	133	 
	Section 11.17. Certain Regulatory Matters
	 	 	134	 
	Section 11.18. Confidentiality
	 	 	134	 
	Section 11.19. Usury Savings Clause
	 	 	135	 
	Section 11.20. Counterparts
	 	 	135	 
	Section 11.21. Effectiveness; Entire Agreement
	 	 	135	 
	Section 11.22. PATRIOT Act
	 	 	136	 
	Section 11.23. Electronic Execution of Assignments
	 	 	136	 
	Section 11.24. No Fiduciary Duty
	 	 	136	 






	 	 	 	 	 
	 	 	Page	 
	APPENDICES:
	 	 	 	 
	A Revolving Commitments
	 	 	 	 
	B Notice Addresses
	 	 	 	 
	 
	 	 	 	 
	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	4.01 Jurisdictions of Organization and Qualification
	 	 	 	 
	4.02 Equity Interests and Ownership
	 	 	 	 
	4.12 Real Estate Assets
	 	 	 	 
	4.15 Material Contracts
	 	 	 	 
	6.01 Certain Indebtedness
	 	 	 	 
	6.02 Certain Liens
	 	 	 	 
	6.03 Certain Negative Pledges
	 	 	 	 
	6.05 Certain Restrictions on Subsidiary Distributions
	 	 	 	 
	6.06 Certain Investments
	 	 	 	 
	6.09 Certain Affiliate Transactions
	 	 	 	 
	 








iv









 





	 	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	A-1 Funding Notice
	 	 	 	 
	A-2 Conversion/Continuation Notice
	 	 	 	 
	A-3 Issuance Notice
	 	 	 	 
	B-1 Term Loan Note
	 	 	 	 
	B-2 Revolving Loan Note
	 	 	 	 
	B-3 Swing Line Note
	 	 	 	 
	C Compliance Certificate
	 	 	 	 
	D [Reserved]
	 	 	 	 
	E Assignment Agreement
	 	 	 	 
	F U.S. Tax Certificate
	 	 	 	 
	G-1 Closing Date Certificate
	 	 	 	 
	G-2 Solvency Certificate
	 	 	 	 
	H Counterpart Agreement
	 	 	 	 
	I [Reserved]
	 	 	 	 
	J [Reserved]
	 	 	 	 
	K [Reserved]
	 	 	 	 
	L [Reserved]
	 	 	 	 
	M Joinder Agreement
	 	 	 	 






 


v









 





CREDIT AND GUARANTY AGREEMENT




This CREDIT AND GUARANTY AGREEMENT, dated as of October 12, 2011, is entered into by and among
DIGITALGLOBE, INC., a Delaware corporation (“Borrower”), the GUARANTORS from time to time party
hereto, the Lenders from time to time party hereto, and JPMORGAN CHASE BANK, N.A., as
administrative agent (together with its permitted successors in such capacity, “Administrative
Agent”) and as Collateral Agent (together with its permitted successor in such capacity,
“Collateral Agent”).



RECITALS:




The Lenders have agreed, subject to the terms and conditions set forth herein, to extend
certain credit facilities to Borrower, the proceeds of which will be used in part, to pay the
consideration for Senior Notes pursuant to the Tender Offer, and for other general corporate
purposes.



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



ARTICLE 1

Definitions and Interpretations




Section 1.01 . Definitions. The following terms used herein, including in the preamble,
recitals, exhibits and schedules hereto, shall have the following meanings:



“Accession Agreement” means the Accession Agreement, dated as of the date hereof, among
Borrower, the other Grantors party thereto, JPMorgan Chase Bank, N.A., as Collateral Agent, U.S.
Bank National Association, as an existing secured obligations representative, and the
Administrative Agent, as the new secured obligations representative.



“Acquisition Consideration” means the purchase consideration for any Permitted Acquisition and
all other payments by Borrower or any of its Restricted Subsidiaries in exchange for, or as part
of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of Equity
Interests or of properties or otherwise and whether payable at or prior to the consummation of such
Permitted Acquisition or deferred for payment at any future time, whether or not any such future
payment is subject to the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other
agreements to make any payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of
any person or business acquired in connection with such Permitted Acquisition, provided that any
such future payment that is subject to a contingency shall be considered Acquisition Consideration
only to the extent of the reserve, if any, required under GAAP at the time of such sale to be
established in respect thereto by Borrower or any of its Restricted Subsidiaries.


 


 









 





“Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate appearing on Reuters BBA Libor
Rates Page 3750 (or on any successor or substitute page of such page) providing rate quotations
comparable to those currently provided on such page of such page, as determined by Administrative
Agent from time to time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period, or (b) in the event the rate referenced in the preceding clause
(a) does not appear on such page or service or if such page or service shall cease to be available,
the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period by (ii) an amount equal to (a) one minus (b) the
Applicable Reserve Requirement; provided, however, that notwithstanding the foregoing, the Adjusted
Eurodollar Rate with respect to Term Loans shall at no time be less than 1.25% per annum.



“Administrative Agent” as defined in the preamble hereto.



“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether
administrative, judicial or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of Borrower or any of its Restricted Subsidiaries) at law or in equity, or
before or by any Governmental Authority, domestic or foreign (including any Environmental Claims),
whether pending or, to the knowledge of Borrower or any of its Restricted Subsidiaries, threatened
in writing against or affecting Borrower or any of its Restricted Subsidiaries or any property of
Borrower or any of its Restricted Subsidiaries.



“Affected Lender” as defined in Section 2.18(b).



“Affected Loans” as defined in Section 2.18(b).



“Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.



“Agent” means each of (a) Administrative Agent and (b) any other Person appointed under the
Credit Documents to serve in an agent or similar capacity, including without limitation, any
auction manager (other than the Collateral Agent).



“Agent Affiliates” as defined in Section 11.01(b).



“Aggregate Amounts Due” as defined in Section 2.17.


 


2









 





“Agreement” means this Credit and Guaranty Agreement, as it may be amended, restated,
supplemented or otherwise modified from time to time.



“Applicable Margin” and “Applicable Commitment Fee Percentage’’ mean (a) from the Closing Date
until the date of delivery of the Compliance Certificate and the financial statements for the
period ending December 31, 2011, a percentage, per annum, determined by reference to the following
table as if the Leverage Ratio then in effect were 2.00:1.00; and (b) thereafter, a percentage, per
annum, determined by reference to the Leverage Ratio in effect from time to time as set forth
below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin:	 	 	 	 	 	 	Applicable	 
	Class of	 	Leverage	 	 	Eurodollar Rate	 	 	Applicable Margin:	 	 	Commitment Fee	 
	Loan	 	Ratio	 	 	Loans	 	 	Base Rate Loans	 	 	Percentage	 
	Term Loans
	 	 	 	 	 	 	4.50	%	 	 	3.50	%	 	 	 	 
	Revolving Loans
	 	 	> 1.50:1.00	 	 	 	4.50	%	 	 	3.50	%	 	 	0.50	%
	 
	 	 	≤ 1.50:1.00	 	 	 	4.25	%	 	 	3.25	%	 	 	0.375	%
	 
	 	 	≤ 1.00:1.00	 	 	 	4.00	%	 	 	3.00	%	 	 	0.375	%






No change in the Applicable Margin or the Applicable Commitment Fee Percentage shall be
effective until three Business Days after the date on which Administrative Agent shall have
received the applicable financial statements and a Compliance Certificate pursuant to Section
5.01(d) calculating the Leverage Ratio. At any time Borrower has not submitted to Administrative
Agent the applicable information as and when required under Section 5.01(d), the Applicable Margin
and the Applicable Commitment Fee Percentage shall be determined as if the Leverage Ratio were in
excess of 1.50:1.00. Within one Business Day of receipt of the applicable information under
Section 5.01(d), Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin and the Applicable Commitment Fee Percentage in
effect from such date.



“Applicable Percentage” means, with respect to any Lender with Revolving Exposure, the
percentage of the total Revolving Commitments represented by such Lender’s Revolving Commitment at
such time (or, if the Revolving Commitments have terminated or expired, such Lender’s share of the
total Revolving Exposure at that time); provided that in the case of Section 2.21 when a Defaulting
Lender shall exist, “Applicable Percentage” shall mean the percentage of the total Revolving
Commitments (disregarding any Defaulting Lender’s Revolving Commitment) represented by such
Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Revolving Commitments most recently in
effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the
time of determination.


 


3









 





“Applicable Reserve Requirement” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the
Board of Governors to which Administrative Agent is subject with respect to the Adjusted
Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board of Governors). Such reserve percentage shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Applicable Reserve Requirement shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.



“Approved Electronic Communications” means any notice, demand, communication, information,
document or other material that any Credit Party provides to Administrative Agent pursuant to any
Credit Document or the transactions contemplated therein which is distributed to Agents, Lenders or
Issuing Bank by means of electronic communications pursuant to Section 11.01(b).



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



“Arrangers” means Morgan Stanley Senior Funding, Inc. and J.P. Morgan Securities LLC, in their
capacity as joint lead arrangers and joint bookrunners.



“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other
disposition to, or any exchange of property with, any Person (other than Borrower or any
Guarantor), in one transaction or a series of transactions, of all or any part of Borrower’s or any
of its Restricted Subsidiaries’ businesses, assets or properties of any kind, whether real,
personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired,
leased or licensed, including the Equity Interests of any of Borrower’s Restricted Subsidiaries,
other than (i) inventory (or other assets) sold, leased or licensed out in the ordinary course of
business, (ii) obsolete or worn-out property, (iii) sales of Cash Equivalents for the Fair Market
Value thereof, (iv) sales, leases or licenses out of other assets for aggregate consideration of
less than $5,000,000 with respect to any transaction or series of related transactions and less
than $15,000,000 in the aggregate during any Fiscal Year; (v) sales, transfers or dispositions by
Borrower or any of its Restricted Subsidiaries of non-strategic assets purchased as part of a
Permitted Acquisition; (vi) dispositions of property (including the sale or issuance of any Equity
Interest) from any Restricted Subsidiary that is not a Guarantor to any other Subsidiary that is
not a Guarantor; (vii) dispositions of property in connection with casualty or condemnation events;
(vii) dispositions of past due accounts receivable in connection with the collection, write down or
compromise thereof in the ordinary course of business; (ix) dispositions of Investments in Joint
Ventures, to the extent required by, or made pursuant to buy/sell arrangements between the Joint
Venture parties set forth in Joint Venture arrangements and similar binding arrangements; provided
that the consideration received shall be in an amount at least equal to the Fair Market Value
thereof; and (x) dispositions of assets in connection with sale-leaseback transactions.


 


4









 





“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent and
Borrower.



“Assignment Effective Date” as defined in Section 11.06(b).



“Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president, vice president (or the
equivalent thereof), chief financial officer or treasurer of such Person; provided that the
secretary or assistant secretary of such Person shall have delivered an incumbency certificate to
Administrative Agent as to the authority of such Authorized Officer.



“Available Amount” means, at any time, an amount equal to:



(a) the sum, without duplication, of:




(i) an amount, not less than zero, equal to the aggregate amount, determined for all
Fiscal Years commencing with the Fiscal Year ending on December 31, 2012, of (x)
Consolidated Excess Cash Flow for such Fiscal Year minus (y) the applicable ECF Percentage
of Consolidated Excess Cash Flow for such Fiscal Year; plus




(ii) the amount of any capital contributions or proceeds of other equity issuances
received as Cash equity by Borrower, in each case, during the period from and including
the Business Day immediately following the Closing Date through and including such time;
plus




(iii) to the extent not (A) included in Consolidated Net Income used in calculating
Consolidated Excess Cash Flow or (B) required to be applied to prepay the Term Loans in
accordance with Section 2.14, the aggregate amount received by Borrower or any Subsidiary
from Cash dividends and distributions received from any Unrestricted Subsidiary as a
return on capital, and net proceeds in connection with any sale of the Equity Interests of
an Unrestricted Subsidiary, in each case, during the period from and including the
Business Day immediately following the Closing Date through and including such time, but
in any event under this clause (iii) only to the extent of the value of Investments in
such Unrestricted Subsidiary made by Borrower or one or more Restricted Subsidiaries after
the Closing Date but prior to the date of such dividend, distribution or sale; plus




(iv) to the extent not otherwise included in the Consolidated Net Income used in
calculating the Consolidated Excess Cash Flow added pursuant to clause (a)(i) above, the
aggregate amount of cash returns to Borrower or any Subsidiary in respect of Investments
made pursuant to Section 6.06(s) after the Closing Date in reliance on the Available
Amount; minus



(b) the sum, without duplication, of:


 


5









 






(i) the aggregate amount of any Restricted Junior Payments made by Borrower or any
Restricted Subsidiary pursuant to Section 6.04(f) after the Closing Date in reliance on
the Available Amount; plus




(ii) the aggregate amount of any Investments made by Borrower or any Restricted
Subsidiary pursuant to Section 6.06(s) after the Closing Date in reliance on the Available
Amount.



“Available Incremental Amount” means, as of the date of determination, the aggregate amount of
New Revolving Loan Commitments and New Term Loan Commitments available to Borrower pursuant to
Section 2.23.



“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.



“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or, in the good faith determination of
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate
in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and
(iii) the Adjusted Eurodollar Rate for a one month Interest Period on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.



“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.



“Beneficial Owner” means, with respect to any U.S. Federal withholding Tax, the beneficial
owner, for U.S. Federal income tax purposes, to whom such Tax relates.



“Beneficiary” means each Agent, Collateral Agent, Issuing Bank, Lender and Lender
Counterparty.



“Board of Directors” means the board of directors or comparable governing body of Borrower, or
any committee thereof duly authorized to act on its behalf.


 


6









 





“Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.



“Borrower” as defined in the preamble hereto.



“Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” means any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.



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



“Cash” means money, currency or a credit balance in any demand or Deposit Account.



“Cash Equivalents” means



(1) United States dollars, or money in other currencies received in the ordinary course of
business,



(2) U.S. Government Obligations or certificates representing an ownership interest in U.S.
Government Obligations with maturities not exceeding one year from the date of acquisition,



(3) (i) demand deposits, (ii) time deposits and certificates of deposit with maturities of one
year or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding
one year from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank
or trust company organized or licensed under the laws of the United States or any State thereof
having capital, surplus and undivided profits in excess of $500 million whose short-term debt is
rated “A-2” or higher by S&P or “P-2” or higher by Moody’s,



(4) repurchase obligations with a term of not more than seven days for underlying securities
of the type described in clauses (2) and (3) above entered into with any financial institution
meeting the qualifications specified in clause (3) above,



(5) commercial paper rated at least P-1 by Moody’s or A-1 by S&P and maturing within one year
after the date of acquisition,



(6) securities with maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P or A-1 by Moody’s,
and


 


7









 





(7) money market funds at least 95% of the assets of which consist of investments of the type
described in clauses (1) through (6) above.



“Cash Management Agreement” means any agreement relating to (a) commercial credit cards or (b)
treasury management services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository network services)
provided to any Credit Party by any Lender Counterparty.



“Certificate re Non Bank Status” means a certificate substantially in the form of Exhibit F.



“Change in Law” means the occurrence after the date of this Agreement or, with respect to any
Lender, such later date on which such Lender becomes a party to this Agreement (a) the adoption of
any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in
the interpretation or application thereof by any Governmental Authority or (c) compliance by any
Lender or the Issuing Bank (or, for purposes of Section 2.19(b), by any lending office of such
Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any Governmental Authority made
or issued after the date of this Agreement; provided however, that notwithstanding anything herein
to the contrary,(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of
the date enacted, adopted, issued or implemented.



“Change of Control” means:




(i) any “person” or “group” (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
“beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly
or indirectly, of more than 35% of the total voting power of the voting stock of Borrower,
unless the Permitted Holders are the beneficial owners of more than 50% of the total
voting power of the voting stock of Borrower; or




(ii) individuals who on the Closing Date constituted the Board of Directors of
Borrower, together with any new directors whose election by the Board of Directors or
whose nomination for election by the stockholders of Borrower was approved by a majority
of the directors then still in office who were either directors or whose election or
nomination for election was previously so approved, cease for any reason to constitute a
majority of the Board of Directors of Borrower then in office.



“Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Term Loan Exposure and (b) Lenders having Revolving Exposure (including Swing Line
Lender) and (ii) with respect to Loans, each of the
following classes of Loans: (a) Term Loans and (b) Revolving Loans (including Swing Line
Loans).


 


8









 





“Closing Date” means the date on which the Term Loans are made.



“Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G 1.



“Collateral” has the meaning assigned to such term in the Security Agreement.



“Collateral Agency Agreement” means the Collateral Agency Agreement dated as of April 28, 2009
among Borrower, the other grantors party thereto, JPMorgan Chase Bank, N.A. (as successor to U.S.
Bank National Association), as collateral agent, U.S. Bank National Association, as indenture
trustee, the hedge counterparty lienholders party thereto, and the other secured obligations
representatives party thereto



“Collateral Agent” as defined in the preamble hereto.



“Collateral Documents” means the “Security Documents” as defined in the Senior Notes Indenture
as in effect on the date hereof.



“Collateral Questionnaire” means a certificate in form reasonably satisfactory to
Administrative Agent that provides information with respect to the personal or mixed property of
each Credit Party.



“Commitment” means any Revolving Commitment or Term Loan Commitment.



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



“Consolidated Adjusted EBITDA” means, for any period:




(a) Consolidated Net Income determined for such period, plus:




(b) in each case, only to the extent deducted in determining such Consolidated Net
Income for such period (and in each case determined on a consolidated basis for Borrower
and its Restricted Subsidiaries in accordance with GAAP) the sum of the following amounts
for such period:




(i) Consolidated Interest Expense; plus




(ii) provision for taxes based on income, profits or capital, including federal,
foreign and state income, franchise, and similar taxes based on income, profits or capital
paid or accrued during such period (including in respect of repatriated funds); plus




(iii) depreciation and amortization; plus




(iv) losses (or minus any gains) realized upon the sale or other disposition of any
asset that is not sold or disposed of in the ordinary course of
business and any loss (or minus any gain) realized upon the sale or other disposition
of any Equity Interest of any Person; plus


 


9









 






(v) extraordinary or non-recurring, charges, expenses or losses; plus




(vi) any losses from an early extinguishment of indebtedness; plus




(vii) all other non-cash charges, non-cash expenses or non-cash losses in such period
(excluding any such item that is non-cash during such period but the subject of a cash
payment in a prior or future period); plus




(viii) non-cash compensation expenses from stock, options to purchase stock and stock
appreciation rights issued to the management, employees or board members of Borrower; plus




(ix) any impairment charges, write-off, depreciation or amortization of intangibles
arising pursuant to GAAP and any other non-cash charges resulting from purchase
accounting; plus




(x) any reduction in revenue resulting from the purchase accounting effects of
adjustments to deferred revenue in component amounts required or permitted by GAAP and
related authoritative pronouncements (including the effects of such adjustments pushed
down to Borrower and its Restricted Subsidiaries), as a result of any acquisition
consummated prior to the Closing Date or any Permitted Acquisition; plus




(xi) any unrealized losses (or minus any unrealized gains) in respect of Secured
Hedge Agreements; plus




(xii) Transaction Costs and any other costs, fees and expenses incurred in connection
with Permitted Acquisitions, issuances or incurrence of Indebtedness, disposition of
assets, issuances of Equity Interests or refinancing transactions and modifications of
instruments of Indebtedness; plus




(c) cash received by Borrower and its Restricted Subsidiaries during such period
under the “service level agreement” portion of NGA Contracts; minus




(d) accrued revenues recognized by Borrower and its Restricted Subsidiaries for such
period with respect to (i) the “service level agreement” portion of NGA Contracts and (ii)
the “cost share” portion of the NextView Contract; minus




(e) all non-cash items increasing Consolidated Net Income (excluding any such item
that is non-cash during such period but the subject of a cash payment in a prior or future
period).


 


10









 





“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Borrower and its Restricted Subsidiaries during such period determined on a consolidated basis
that, in accordance with GAAP, are or should be included in “purchase of property and equipment” or
similar items, or which should
otherwise be capitalized, reflected in the consolidated statement of cash flows of Borrower
and its Restricted Subsidiaries; provided that Consolidated Capital Expenditures shall not include
any expenditures (i) for replacements and substitutions for fixed assets, capital assets or
equipment to the extent made with Net Insurance/Condemnation Proceeds invested pursuant to Section
2.14(b) or with Net Asset Sale Proceeds invested pursuant to Section 2.14(a) or (ii) which
constitute a Permitted Acquisition permitted under Section 6.06.



“Consolidated Current Assets” means, as at any date of determination, the total assets of
Borrower and its Restricted Subsidiaries on a consolidated basis that may properly be classified as
current assets in conformity with GAAP, excluding (x) Cash and Cash Equivalents and (y) deferred
tax assets.



“Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Borrower and its Restricted Subsidiaries on a consolidated basis that may properly
be classified as current liabilities in conformity with GAAP, excluding (x) the current portion of
long term debt, (y) deferred revenue and (z) deferred tax liabilities.



“Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to:




(i) the sum, without duplication, of the amounts for such period of (a) Consolidated
Net Income, plus, (b) to the extent reducing Consolidated Net Income, the sum, without
duplication, of amounts for non Cash charges reducing Consolidated Net Income, including
for depreciation and amortization (excluding any such non Cash charge to the extent that
it represents an accrual or reserve for potential Cash charge in any future period or
amortization of a prepaid Cash charge that was paid in a prior period), plus (c) the
Consolidated Working Capital Adjustment plus (d) amounts designated as Reserved Funds in a
prior period and redesignated pursuant to the definition thereof as no longer constituting
Reserved Funds (but not including any such Reserved Funds used to fund one or more
Permitted Reserved Funds Uses), plus (e) the amount (which may be a negative number) by
which deferred revenue as of the end of such period exceeds (or is less than) the deferred
revenue as of the beginning of such period, minus




(ii) the sum, without duplication, of:




(a) the amounts for such period paid from Internally Generated Cash of (1)
scheduled and voluntary repayments of Indebtedness for borrowed money (excluding
repayments of Revolving Loans or Swing Line Loans except to the extent the
Revolving Commitments are permanently reduced in connection with such repayments,
and excluding any mandatory prepayments or voluntary prepayments of the Loans)
and scheduled repayments of obligations under Capital Leases (excluding any
interest expense portion thereof), (2) Consolidated Capital Expenditures, (3)
Permitted Acquisitions and (4) Permitted Foreign Investments, plus




(b) without duplication of any amount in clause (a), amounts of Internally
Generated Cash designated as Reserved Funds during such period and not expended
in such period.


 


11









 





“Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of
Borrower and its Restricted Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Borrower and its Restricted Subsidiaries, including all commissions, discounts and
other fees and charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but, excluding, however for purposes of Section 7.01, any amount not payable in Cash
during the applicable period (including any such amounts attributable to original issue discount)
and any amounts referred to in Section 2.11(d) or (e) payable on or before the Closing Date.



“Consolidated Net Income” means, for any period, the aggregate net income (or loss) of
Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in
conformity with GAAP, provided that the following (without duplication) will be excluded in
computing Consolidated Net Income:



(a) the net income (or loss) of any Person that is not a wholly-owned Restricted Subsidiary,
except to the extent that cash in an amount equal to any such income has actually been received by
Borrower or (subject to clause (c) below) any of its Restricted Subsidiaries;



(b) any net income (or loss) of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition;



(c) the net income (or loss) of any Restricted Subsidiary of Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such
net income would not have been permitted for the relevant period by charter or by any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such
Restricted Subsidiary;



(d) any gains (but not losses) attributable to Asset Sales;



(e) any extraordinary or non recurring gains (but not losses); and



(f) the cumulative effect of a change in accounting principles.



In calculating the aggregate net income (or loss) of Borrower and its Restricted Subsidiaries
on a consolidated basis, non-wholly owned Restricted Subsidiaries of Borrower will be treated as if
accounted for under the equity method of accounting.



“Consolidated Total Debt” means, as at any date of determination, the aggregate principal
amount of all Indebtedness for borrowed money, purchase money Indebtedness, and Capital Leases of
Borrower and its Restricted Subsidiaries (or, if higher, the par value or stated face amount of all
such Indebtedness (other than zero coupon Indebtedness)) determined on a consolidated basis in
accordance with GAAP.



“Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.


 


12









 





“Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated
Working Capital as of the end of such period. In calculating the Consolidated Working Capital
Adjustment there shall be excluded (i) the effect of reclassification during such period of current
assets to long term assets (or long term assets to current assets) and current liabilities to long
term liabilities (or long term liabilities to current liabilities), (ii) any changes in allowance
for “doubtful accounts”, (iii) any changes in accounts payable and accrued liabilities associated
with amounts capitalized in property and equipment and (iv) the effect of any Permitted Acquisition
during such period; provided that there shall be included with respect to any Permitted Acquisition
during such period an amount (which may be a negative number) by which the Consolidated Working
Capital acquired in such Permitted Acquisition as at the time of such acquisition exceeds (or is
less than) Consolidated Working Capital at the end of such period.



“Constructive Total Failure” has the meaning ascribed to that term or a term substantially
similar to such term in the launch and initial operations insurance or the orbit insurance Borrower
or any Restricted Subsidiary of Borrower is required to obtain pursuant to Section 5.05, whichever
is then in effect.



“Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.



“Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.



“Credit Date” means the date of a Credit Extension.



“Credit Document” means any of this Agreement, the Notes, if any, the Accession Agreement, any
Joinder Agreement, the Collateral Documents, any Refinancing Amendment, any documents or
certificates executed by Borrower in favor of Issuing Bank relating to Letters of Credit, and all
other documents, certificates, instruments or agreements executed and delivered by or on behalf of
a Credit Party for the benefit of any Agent, Issuing Bank or any Lender in connection herewith on
or after the date hereof.



“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.



“Credit Party” means Borrower and the Guarantors.



“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk
associated with Borrower’s and its Restricted Subsidiaries’ operations and not for speculative
purposes.


 


13









 





“DAP Debt” means all obligations of Borrower or any of its Restricted Subsidiaries in respect
of letters of credit, bankers’ acceptances or similar instruments issued to, or performance bonds
posted to, customers participating in the Direct Access Program.



“Default” means an Event of Default or a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.



“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date
required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its
participations in Letters of Credit or Swing Line Loans or (iii) pay over to Administrative Agent,
any Lender or any Credit Party any other amount required to be paid by it hereunder, unless, in the
case of clause (i) above, such Lender notifies Administrative Agent in writing that such failure is
the result of such Lender’s good faith determination that a condition precedent to funding
(specifically identified and including the particular default, if any) has not been satisfied, (b)
has notified Administrative Agent, Issuing Bank, Swing Line Lender, any other Lender, Borrower or
any Credit Party in writing, or has made a public statement to the effect, that it does not intend
or expect to comply with any of its funding obligations under this Agreement (unless such writing
or public statement indicates that such position is based on such Lender’s good faith determination
that a condition precedent (specifically identified and including the particular default, if any)
to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after request by
Administrative Agent or Borrower, acting in good faith, to provide a certification in writing from
an authorized officer of such Lender that it will comply with its obligations to fund prospective
Loans and participations in then outstanding Letters of Credit and Swing Line Loans under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon Administrative Agent’s or Borrower’s receipt of such certification in form and substance
satisfactory to it and Administrative Agent, or (d) has become the subject of a Bankruptcy Event.



“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



“DigitalGlobe Business” means the designing, development, acquisition, construction,
manufacture, installation, leasing, licensing, testing, completion, delivery, acceptance,
activation, operation, maintenance, restoration, improvement, use and ownership of the DigitalGlobe
System, the providing of services in connection with the DigitalGlobe System, the financing thereof
(whether through the issuance of debt or equity securities or otherwise) and all systems, property,
businesses, activities and services of Borrower and its Restricted Subsidiaries related thereto and
all businesses reasonably associated with digital imagery.



“DigitalGlobe System” means each Satellite and the TTC&M Facilities.


 


14









 





“Direct Access Program” means Borrower’s program whereby customers, with approval from the
U.S. government, purchase equipment and software necessary to allow access to Borrower’s Satellites
and purchase access time on such Satellites.



“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures (excluding any maturity
as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant
to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof
(other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), in
whole or in part or (iii) is or becomes convertible into or exchangeable (unless at the sole option
of the issuer thereof) for Indebtedness or any other Equity Interests that would constitute
Disqualified Equity Interests, in each case, prior to the date that is 181 days after the Term Loan
Maturity Date; provided that Equity Interests will not constitute Disqualified Equity Interests
solely because of provisions giving holders thereof the right to require repurchase or redemption
upon an “asset sale” or “change of control” occurring prior to the date that is 181 days after the
Term Loan Maturity Date if those provisions are more favorable, taken as a whole, to the Lenders
than Section 6.07 and Section 9.01(a).



“Disqualified Lender” means any Person (or its Affiliates) designated in writing by Borrower
in consultation with and reasonably acceptable to the Arrangers; provided that no Person shall be a
“Disqualified Lender” unless such Person is specifically identified in writing by Borrower to the
Arrangers prior to October 8, 2011, which list may be distributed to each Lender.



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



“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia, other than a Subsidiary substantially all
of the assets of which consist of stock of Subsidiaries that are classified as “controlled foreign
corporations” for U.S. federal income tax purposes.



“ECF Percentage” means 50.0%; provided, that the ECF Percentage shall be (i) reduced to 25.0%
if the Leverage Ratio as of the last day of such Fiscal Year is less than 3.50 to 1.00 but equal to
or greater than 3.00 to 1.00 and (ii) equal to 0.0% if the Leverage Ratio as of the last day of
such Fiscal Year is less than 3.00 to 1.00.



“Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an
affiliate of any Lender or an Approved Fund, or (ii) a commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary
course of business; provided, neither any Credit Party nor any Affiliate thereof shall be an
Eligible Assignee.



“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was within the six (6) years prior to the date of this Agreement sponsored, maintained
or contributed to by, or required to be contributed by, Borrower, any of its Restricted
Subsidiaries or any of their respective ERISA Affiliates.


 


15









 





“Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to public health or safety, natural resources or
the environment.



“Environmental Laws” means any and all applicable foreign or domestic, federal or state (or
any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments,
Governmental Approvals, or any other requirements of Governmental Authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials Activity; (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational
or public safety or health, industrial hygiene, or the protection of the environment, in any manner
applicable to Borrower or any of its Restricted Subsidiaries or any Facility.



“Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.



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



“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of Borrower or any of its
Restricted Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or any such
Restricted Subsidiary within the meaning of this definition with respect to the period such entity
was an ERISA Affiliate of Borrower or such Restricted Subsidiary and with respect to liabilities
arising after such period for which Borrower or such Restricted Subsidiary could be liable under
the Internal Revenue Code or ERISA.



“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30 day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 430(j) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress



 


16









 






termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Borrower, any of its
Restricted Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two
or more contributing sponsors or the termination of any such Pension Plan resulting in liability to
Borrower, any of its Restricted Subsidiaries or any of their respective Affiliates pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi)
the imposition of liability on Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of Borrower, any of its Restricted
Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any
potential liability therefore, or the receipt by Borrower, any of its Restricted Subsidiaries or
any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act
or omission which could give rise to the imposition on Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or
Section 4071 of ERISA in respect of any Employee Benefit Plan; or (ix) the imposition of a lien
pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of Section 436 of
the Internal Revenue Code.



“Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



“Event of Default” means each of the conditions or events set forth in Section 9.01.



“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.



“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient
under any Credit Document: (a) income or franchise Taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction (i) under the laws of which such
Recipient is organized or in which its principal office is located, (ii) as a result of a present
or former connection between such person and the jurisdiction of the Governmental Authority
imposing such Tax (other than any connection arising solely from such person having executed,
delivered or performed its obligations or received a payment under, or enforced, this Agreement or
any other Credit Document, or sold or assigned an interest in any Credit Document), or (iii) in the
case of any Lender, in which its applicable lending office is located, and (b) any branch profits
Taxes imposed by the United States of America or any similar Taxes imposed by any other
jurisdiction described in clause (a) above, and (c) in the case of a Non-U.S. Lender (other than an
assignee pursuant to a request by Borrower under Section 2.22(b)), any withholding Taxes (i)
resulting from any law in effect (including FATCA) on such date such Non-U.S. Lender becomes a
party to this Agreement (or designates a new lending office), (ii) that are attributable to such
Non-U.S. Lender’s failure or inability to comply with Section 2.20(f), except to the extent that
such Non-U.S. Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from Borrower with respect to such withholding Taxes pursuant to Section
2.20(a), or (iii) that are imposed on amounts payable by any Credit Party pursuant to FATCA.


 


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“FAA” means the United States Federal Aviation Administration or any successor agency thereto.



“Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Borrower or any of
its Restricted Subsidiaries or any of their respective predecessors or Affiliates.



“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by a Financial Officer of Borrower or the Restricted Subsidiary with respect to
valuations not in excess of $10,000,000 or determined in good faith by the Board of Directors of
Borrower or the Restricted Subsidiary with respect to valuations equal to or in excess of
$10,000,000, as applicable, which determination will be conclusive (unless otherwise provided in
this Agreement).



“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code and any amended or
successor version that is substantively comparable and any current or future Treasury regulations
or other official administrative guidance (including any Revenue Ruling, Revenue Procedure, Notice
or similar guidance issued by the Internal Revenue Service) promulgated thereunder.



“FCC” means the United States Federal Communications Commission or any successor agency
thereto.



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



“Financial Officer” of any Person means the chief financial officer, treasurer, assistant
treasurer or vice president of finance or controller of such Person.



“Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of a Financial Officer of Borrower that such
financial statements fairly present, in all material respects, the financial condition of Borrower
and its Subsidiaries as at the dates indicated and the results of their operations and their cash
flows for the periods indicated, subject to changes resulting from audit and normal year end
adjustments.


 


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“First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.



“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



“Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of
each calendar year.



“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.



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



“Funding Notice” means a notice substantially in the form of Exhibit A-1.



“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.02,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.



“Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.



“Governmental Approval” means any Telecommunications Approval and any other material
authorizations, consents, approvals, licenses, rulings, permits, certifications, exemptions,
filings or registrations by or with a Telecommunications Authority or other Governmental Authority
required by applicable requirements of law to be obtained or held by Borrower or any of its
Restricted Subsidiaries in connection with the DigitalGlobe Business, the due execution, delivery
and performance of the Credit Documents, the creation, perfection and enforcement of the Liens
contemplated by the Collateral Documents and the other transaction contemplated hereby.



“Grantor” as defined in the Security Agreement.



“Guaranteed Obligations” as defined in Section 8.01.



“Guarantor” means each Domestic Subsidiary of Borrower that is a Restricted Subsidiary.



“Guaranty” means the guaranty of each Guarantor set forth in Article 8.


 


19









 





“Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Environmental Law.



“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.



“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.



“Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Borrower and its Subsidiaries, for the immediately preceding 3 Fiscal Years,
consisting of balance sheets and the related consolidated statements of income, stockholders’
equity and cash flows for such Fiscal Years, and (ii) the unaudited financial statements of
Borrower and its Subsidiaries as of the most recent Fiscal Quarter ended after the date of the most
recent audited financial statements and at least 10 days prior to the Closing Date, consisting of a
balance sheet and the related consolidated statements of income, stockholders’ equity and cash
flows for the three , six or nine month period, as applicable, ending on such date, and, in the
case of clauses (i) and (ii), certified by the Financial Officer of Borrower that they fairly
present, in all material respects, the financial condition of Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year end adjustments.



“Increased Amount Date” as defined in Section 2.23.



“Incremental Equivalent Debt” means Indebtedness, in an amount not to exceed the Available
Incremental Amount as of the time of determination, incurred by Borrower (which may be guaranteed
by the Guarantors) consisting of the issuance of senior secured first lien or second lien notes,
senior subordinated notes or senior unsecured notes, in each case issued in a public offering, Rule
144A or other private placement or bridge in lieu of the foregoing, or secured or unsecured
“mezzanine” debt.



“Indebtedness” means, as applied to any Person, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price
of property or services (other than current trade payables incurred in the ordinary course of such
Person’s business and earn-out obligations), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e) all Capital Lease
obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of credit or



 


20









 






similar arrangements, (g) all guarantee obligations of such Person in respect of obligations
of others of the kind referred to in clauses (a) through (f) above, (h) all obligations of the kind
referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation; provided, that the amount of such Indebtedness
shall be limited to the lesser of such obligation and the value of the property subject to such
Lien if such Person has not assumed or become liable for the payment of such obligation, (i) all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of Disqualified Equity Interest of such Person, (j) all obligations of such Person in
respect of Secured Hedge Agreements; provided that (i) in no event shall obligations under any
Secured Hedge Agreement be deemed “Indebtedness” for any purpose under Article 7 unless such
obligations relate to a derivatives transaction which has been terminated and (ii) Indebtedness
shall not include obligations under operating leases or obligations under employment contracts
entered into in the ordinary course of business; and (k) all payment obligations in respect of
sale-leaseback transactions, without regard to whether such obligations are in respect of capital
leases or operating leases.



“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any
kind or nature whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing
commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a
party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing
this indemnity), whether direct, indirect, special or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including securities and commercial
laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or
on contract or otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to
make Credit Extensions, the syndication of the credit facilities provided for herein or the use or
intended use of the proceeds thereof, any amendments, waivers or consents with respect to any
provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the
Credit Documents (including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty)); (ii) any commitment letter, fee letter or
engagement letter delivered by any Agent or any Lender to Borrower with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Borrower or any of its Restricted Subsidiaries.



“Indemnified Taxes” means (a) Taxes other than Excluded Taxes, imposed on or with respect to
any payment made by any Credit Party under any Credit Document and (b) Other Taxes.


 


21









 





“Indemnitee” as defined in Section 11.03.



“Installment” as defined in Section 2.12.



“Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four Fiscal Quarter Period then ending to (ii) Consolidated
Interest Expense for such four Fiscal Quarter Period; provided that for the first three Fiscal
Quarters ending after the Closing Date, Consolidated Interest Expense for the related four Fiscal
Quarter Periods shall be deemed to be Consolidated Interest Expense for the first three months, six
months and nine months multiplied by 4, 2 and 4/3, respectively.



“Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided, in
the case of each Interest Period of longer than three months “Interest Payment Date” shall also
include each date that is three months, or an integral multiple thereof, after the commencement of
such Interest Period.



“Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one,
two, three or six months (or nine or twelve months if agreed to by all affected Lenders), as
selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i)
initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may
be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period
expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day unless no further
Business Day occurs in such month, in which case such Interest Period shall expire on the
immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to clauses (c) and (d), of this
definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect
to any portion of any Class of Term Loans shall extend beyond such Class’s Term Loan Maturity Date;
and (d) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond
the Revolving Commitment Termination Date.



“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Borrower’s and its Restricted Subsidiaries’ operations and not for speculative purposes.



“Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.


 


22









 





“Internally Generated Cash” means, with respect to any period, any cash of Borrower or any
Restricted Subsidiary generated during such period, excluding (i) Net Asset Sale Proceeds, (ii) Net
Insurance/Condemnation Proceeds, (iii) amounts that had previously been designated as Reserved
Funds but redesignated as no longer being Reserved Funds and (iv) any cash that is generated from
an incurrence of Indebtedness, an issuance of Equity Interests or a capital contribution.



“Investment” means (i) any direct or indirect purchase or other acquisition by Borrower or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor); (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Borrower from any Person (other than Borrower or any
Guarantor), of any Equity Interests of such Person; and (iii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business) or capital contributions by Borrower
or any of its Subsidiaries to any other Person (other than Borrower or any Guarantor), including
all indebtedness and accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business. The amount of any
Investment shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write ups, write downs or write
offs with respect to such Investment.



“IP Security Agreement Supplements” has the meaning assigned to that term in the Security
Agreement.



“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.



“Issuing Bank” means JPMorgan Chase Bank, as Issuing Bank hereunder, together with its
permitted successors and assigns in such capacity.



“Joinder Agreement” means an agreement substantially in the form of Exhibit M.



“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of
any Person be considered to be a Joint Venture to which such Person is a party.



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



“Latest Maturity Date” shall mean, at any date of determination, the latest maturity or
expiration date applicable to any Loan or Commitment hereunder at such time, including the latest
maturity or expiration date of any New Term Loan, any Replacement Term Loan, any New Revolving Loan
Commitment, any New Revolving Loan, any Replacement Revolving Commitment or any Replacement
Revolving Loan.



“Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement, a Joinder
Agreement or a Refinancing Amendment.


 


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“Lender Counterparty” means each Lender, each Agent, the Collateral Agent and each of their
respective Affiliates counterparty to a Secured Hedge Agreement or Cash Management Agreement
(including any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing
Date but subsequently, whether before or after entering into a Secured Hedge Agreement or Cash
Management Agreement, as applicable, ceases to be an Agent or a Lender, as the case may be).



“Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.



“Letter of Credit Sublimit” means the lesser of (i) $40,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.



“Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all
Letters of Credit then outstanding, and (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of Borrower.



“Leverage Ratio” means, at any date, the ratio of (i) Consolidated Total Debt as of such date
to (ii) Consolidated Adjusted EBITDA for the four Fiscal Quarter period ending on or most recently
prior to such date.



“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease or license in the nature thereof) and any option,
trust or other preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a third party with
respect to such Securities.



“Loan” means a Term Loan, a Revolving Loan, a Swing Line Loan, a New Term Loan, a Replacement
Term Loan, a New Revolving Loan, and a Replacement Revolving Loan.



“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.



“Material Adverse Effect” means a material adverse effect on (i) the business, operations,
properties, assets or financial condition of Borrower and its Restricted Subsidiaries taken as a
whole; (ii) the ability of any Credit Party to fully and timely perform its payment obligations
under any Credit Document; or (iii) the rights and remedies of, the Collateral Agent, the
Administrative Agent or any other Agent and any Lender or any Secured Party under any Credit
Document.



“Material Contract” means any contract or other arrangement to which Borrower or any of its
Restricted Subsidiaries is a party (other than the Credit Documents) for which breach,
nonperformance, cancellation or failure to renew could reasonably be expected to have a Material
Adverse Effect.



“Material Real Estate Asset” means any fee owned Real Estate Asset having a fair market value
in excess of $5,000,000 as of the date of the acquisition thereof.


 


24









 





“Mission Control Center” means the mission control center located at Borrower’s headquarters
at 1601 Dry Creek Drive, Longmont, Colorado.



“Moody’s” means Moody’s Investor Services, Inc.



“Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended,
restated, supplemented or otherwise modified from time to time.



“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.



“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



“Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Borrower and its Restricted
Subsidiaries in the form prepared for presentation to senior management thereof for the applicable
month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current
Fiscal Year to the end of such period to which such financial statements relate.



“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Borrower or any
of its Restricted Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs and
expenses incurred in connection with such Asset Sale, including (a) income or gains taxes payable
by the seller as a result of any gain recognized in connection with such Asset Sale, (b) payment of
the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness
(other than the Loans) that is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Asset Sale and (c) a reasonable
reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities
and representations and warranties to purchaser in respect of such Asset Sale undertaken by
Borrower or any of its Restricted Subsidiaries in connection with such Asset Sale; provided that
upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.



“Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Borrower or any of its Restricted Subsidiaries (a) under any casualty
insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any
assets of Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of
eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser
with such power under threat of such a taking, in each case in excess of $5,000,000 individually or
$15,000,000 in the aggregate during any Fiscal Year minus (ii) (a) any actual and reasonable costs
incurred by Borrower or any of its Restricted Subsidiaries in connection with the adjustment or
settlement of any claims of Borrower or such Restricted Subsidiary in respect thereof, (b) any bona
fide direct costs incurred in connection with any sale of such assets as referred to in clause
(i)(b) of this definition, including income taxes payable as a result of any gain recognized in
connection therewith and (c) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured
by a Lien on the stock or assets in question and that is required to be repaid under the terms
thereof as a result of such sale or taking of such assets referred to in clause (i)(b) of this
definition.


 


25









 





“New Revolving Loan Commitments” as defined in Section 2.23.



“New Revolving Loan Lender” as defined in Section 2.23.



“New Revolving Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the New Revolving Loans of such Lender.



“New Revolving Loans” as defined in Section 2.23.



“New Revolving Loan Maturity Date” means the date on which New Revolving Loans of a Series
shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement,
including by acceleration or otherwise.



“New Term Loan Commitments” as defined in Section 2.23.



“New Term Loan Exposure” means, with respect to any Lender, as of any date of determination,
the outstanding principal amount of the New Term Loans of such Lender.



“New Term Loan Lender” as defined in Section 2.23.



“New Term Loan Maturity Date” means the date on which New Term Loans of a Series shall become
due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by
acceleration or otherwise.



“New Term Loans” as defined in Section 2.23.



“NextView Contract” means NextView Contract, dated as of December 9, 2003, between Borrower
and the National Geospatial Intelligence Agency.



“NGA Contract” means any contract, agreement or other arrangement between Borrower or any
Restricted Subsidiary and the National Geospatial Intelligence Agency.



“NOAA” means the United States Department of Commerce’s National Oceanic and Atmospheric
Administration or any successor agency thereto.



“Non-Public Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.



“Non-US Lender” means a Lender that is not a U.S. Person.



“Note” means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.



“Notice” means a Funding Notice, an Issuance Notice, or a Conversion/ Continuation Notice.


 


26









 





“Obligations” means all obligations of every nature of each Credit Party, including
obligations from time to time owed to Agents (including former Agents), Arranger, Lenders or any of
them and Lender Counterparties, under any Credit Document, Secured Hedge Agreement or Cash
Management Agreement, whether for principal, interest (including interest which, but for the filing
of a petition in bankruptcy with respect to such Credit Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments
for early termination of Secured Hedge Agreements, fees, expenses, indemnification or otherwise.



“Obligee Guarantor” as defined in Section 8.06.



“OFAC” as defined in Section 4.25.



“Organizational Documents” means (i) with respect to any corporation or company, its
certificate, memorandum or articles of incorporation, organization or association, as amended, and
its by laws, as amended, (ii) with respect to any limited partnership, its certificate or
declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii)
with respect to any general partnership, its partnership agreement, as amended, and (iv) with
respect to any limited liability company, its articles of organization, as amended, and its
operating agreement, as amended. In the event any term or condition of this Agreement or any other
Credit Document requires any Organizational Document to be certified by a secretary of state or
similar governmental official, the reference to any such “Organizational Document” shall only be to
a document of a type customarily certified by such governmental official.



“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a
present or former connection between such Recipient and the jurisdiction imposing such Taxes (other
than a connection arising from such Recipient having executed, delivered, enforced, become a party
to, performed its obligations under, received payments under, received or perfected a security
interest under, or engaged in any other transaction pursuant to, or enforced, any Credit Document,
or sold or assigned an interest in any Credit Document).



“Other Taxes” means any present or future stamp, court, documentary intangible, recording,
filing or similar other excise or property Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any
Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment or a sale of a participation (other than an assignment under Section 2.22(b)).



“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or
indirectly, a subsidiary.



“Partial Failure” has the meaning ascribed to that term or a term substantially similar to
such term in the launch and initial operations insurance or the orbit insurance Borrower or any
Restricted Subsidiary of Borrower is required to obtain pursuant to Section 5.05, whichever is then
in effect.



“Participant Register” as defined in Section 11.06(g).


 


27









 





“PATRIOT Act” as defined in Section 3.01(n).



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



“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.



“Permitted Acquisition” means any transaction or series of related transactions for the
purpose of or resulting in the acquisition by Borrower or any of its wholly owned Restricted
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, all of the Equity Interests of, or a business line or unit or a division of, any Person;
provided,




(i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




(ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Approvals;




(iii) such acquisition was not preceded by an unsolicited tender offer for such
Equity Interests by, or proxy contest initiated by Borrower or any Subsidiary;




(iv) in the case of the purchase or other acquisition of Equity Interests, all of the
Equity Interests (except for any such Securities in the nature of directors’ qualifying
 shares required pursuant to applicable law) acquired or otherwise issued by such Person or
any newly formed Subsidiary of Borrower in connection with such acquisition shall be owned
100% by Borrower or a Guarantor, and Borrower shall have taken, or caused to be taken,
promptly after the date such Person becomes a Subsidiary of Borrower, each of the actions
set forth in Section 5.10 or Section 5.11, as applicable;




(v) Borrower and its Restricted Subsidiaries shall be in compliance with the
financial covenants set forth in Article 7 on a pro forma basis after giving effect to
such acquisition as of the last day of the Fiscal Quarter most recently ended, (as
determined in accordance with Section 1.02(b));




(vi) Borrower shall have delivered to Administrative Agent (A) with respect to any
transaction or series of related transactions involving Acquisition Consideration of more
than $25,000,000, at least 10 Business Days prior to such proposed acquisition, (i) a
Compliance Certificate evidencing compliance with the covenants set forth in Article 7 as
required under clause (iv) above and (ii) all other relevant financial information with
respect to such acquired assets, including the aggregate consideration for such
acquisition and any other information required to demonstrate compliance with the
covenants set forth in Article 7 and (B) with respect to any transaction or series of
related transactions involving Acquisition Consideration of more than $250,000,000
promptly upon
request by Administrative Agent, (i) a copy of the purchase agreement related to the
proposed Permitted Acquisition (and any related documents reasonably requested by
Administrative Agent) and (ii) to the extent available, quarterly and annual financial
statements of the Person whose Equity Interests or assets are being acquired for the
twelve (12) month period immediately prior to such proposed Permitted Acquisition,
including any audited financial statements that are available;


 


28









 






(vii) any Person or assets or division as acquired in accordance herewith shall be in
same business or lines of business in which Borrower and/or its Restricted Subsidiaries
are engaged as of the Closing Date or similar or related businesses; and




(viii) after giving effect to the consummation of the respective Permitted
Acquisition and any financing thereof, the sum of (i) the aggregate amount of unrestricted
Cash and Cash Equivalents held by Borrower and its Restricted Subsidiaries plus (ii) the
Revolving Commitments less the Total Utilization of Revolving Commitments, shall not be
less than $35,000,000 (it being understood that Cash and Cash Equivalents subject to the
Lien of the Collateral Documents and Reserved Funds shall not constitute restricted Cash
or Cash Equivalents).



“Permitted Business” means any of the businesses in which Borrower and its Restricted
Subsidiaries are engaged on the Closing Date, and any business reasonably related, incidental,
complementary or ancillary thereto.



“Permitted First Priority Refinancing Debt” shall mean any secured Indebtedness incurred by
Borrower in the form of one or more series of senior secured notes or loans; provided that (i) such
Indebtedness may only be secured by assets consisting of Collateral on a pari passu basis (but
without regard to the control of remedies) with the Obligations and may not be secured by any
property or assets of Borrower or any Restricted Subsidiary other than the Collateral, (ii) such
Indebtedness shall be used to refinance the Loans, (iii) such Indebtedness does not mature or have
scheduled amortization or payments of principal and is not subject to mandatory redemption,
repurchase, prepayment or sinking fund obligation (except customary asset sale or change of control
provisions), in each case prior to the date that is ninety-one (91) days after the then Latest
Maturity Date, (iv) such Indebtedness is not at any time guaranteed by any Subsidiaries other than
Subsidiaries that are Guarantors, (v) the other terms and conditions of such Indebtedness
(excluding pricing, premiums and optional prepayment or optional redemption provisions) are
customary market terms for Indebtedness of such type and, in any event, when taken as a whole, are
not more favorable to the investors or lenders providing such Indebtedness than the terms and
conditions of the applicable Loans being refinanced (except with respect to any terms (including
covenants) and conditions contained in such Indebtedness that are applicable only after the then
Latest Maturity Date), (vi) no Event of Default shall exist immediately prior to or after giving
effect to such incurrence, (vii) the security agreements relating to such Indebtedness are
substantially the same as the applicable Collateral Documents (with such differences as are
reasonably satisfactory to Administrative Agent) and (viii) a Senior Representative validly acting
on behalf of the holders of such Indebtedness shall have become party to a customary intercreditor
agreement or, if an intercreditor
agreement has previously been entered into in connection with any other Permitted First
Priority Refinancing Debt, execute a joinder to the then existing intercreditor agreement.


 


29









 





“Permitted Foreign Entity” means any “first-tier” Foreign Subsidiary which is a Restricted
Subsidiary.



“Permitted Foreign Investment” means an Investment made by Borrower or another Credit Party to
any Permitted Foreign Entity or any other wholly-owned Foreign Subsidiary after the Closing Date;
provided that (a) the proceeds of such Investment are used by such Permitted Foreign Entity or
wholly-owned Foreign Subsidiary, as applicable, solely to directly, or indirectly through any
Foreign Subsidiary of such Permitted Foreign Entity or wholly-owned Foreign Subsidiary, finance a
Permitted Acquisition, (b) if applicable, such Investment is evidenced by a promissory note of such
Permitted Foreign Entity; and (c) such promissory note is delivered and pledged to the Collateral
Agent pursuant to the Collateral Documents.



“Permitted Holders” means any or all of the following:




(i) Morgan Stanley Principal Investments;




(ii) any Affiliate of any Person specified in clause (i); and




(iii) any Person both the capital stock and the voting stock of which (or in the case
of a trust, the beneficial interests in which) are owned 80% by Persons specified in
clauses (i) and (ii).



“Permitted Liens” means each of the Liens permitted pursuant to Section 6.02.



“Permitted Refinancing” shall mean, with respect to any Person, any modification, refinancing,
refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended
except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable
amounts paid, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any existing commitments
unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a
final maturity date equal to or later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) to the extent such
Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of
payment to the Obligations, such modification, refinancing, refunding, renewal or extension is
subordinated in right of payment to the Obligations on terms at least as favorable, taken as a
whole, to the Lenders (as determined in good faith by the Board of Directors of Borrower) as those
contained in the documentation governing the Indebtedness being modified, refinanced, refunded,
renewed or extended, (d) Indebtedness of a Restricted Subsidiary that is not a Borrower or
Guarantor shall not refinance Indebtedness of a Borrower or a Guarantor and (e) no person is an
obligor under such modified, refinanced, refunded, renewed or extended Indebtedness that was not an
obligor under such Indebtedness prior to such modification, refinancing, refunding, renewal or
extension.


 


30









 





“Permitted Second Priority Refinancing Debt” shall mean secured Indebtedness incurred by
Borrower in the form of one or more series of second lien secured notes or second lien secured
loans; provided that (i) such Indebtedness may only be secured by assets consisting of Collateral
on a second lien, subordinated basis to the Obligations and the obligations in respect of any
Permitted First Priority Refinancing Debt and may not be secured by any property or assets of
Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness shall be
used to refinance the Loans, (iii) such Indebtedness does not mature or have scheduled amortization
or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or
sinking fund obligation (except customary asset sale or change of control provisions), in each case
prior to the date that is ninety-one (91) days after the then Latest Maturity Date, (iv) such
Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are
Guarantors, (v) the other terms and conditions of such Indebtedness (excluding pricing, premiums
and optional prepayment or optional redemption provisions) are customary market terms for
Indebtedness of such type and, in any event, when taken as a whole, are not more favorable to the
investors or lenders providing such Indebtedness than the terms and conditions of the applicable
Loans being refinanced (except with respect to any terms (including covenants) and conditions
contained in such Indebtedness that are applicable only after the then Latest Maturity Date), (vi)
the security agreements relating to such Indebtedness reflect the second lien nature of the
security interests and are otherwise substantially the same as the applicable Collateral Documents
(with such differences as are reasonably satisfactory to Administrative Agent), (vii) no Event of
Default shall exist immediately prior to or after giving effect to such incurrence and (viii) a
Senior Representative validly acting on behalf of the holders of such Indebtedness shall have
become party to a customary intercreditor agreement or, if an intercreditor agreement has
previously been entered into in connection with any other Permitted First Priority Refinancing
Debt, execute a joinder to the then existing intercreditor agreement.



“Permitted Unsecured Refinancing Debt” shall mean unsecured Indebtedness incurred by Borrower
in the form of one or more series of unsecured notes or loans; provided that (i) such Indebtedness
shall be used to refinance the Loans, (ii) such Indebtedness does not mature or have scheduled
amortization or payments of principal and is not subject to mandatory redemption, repurchase,
prepayment or sinking fund obligation (except customary asset sale or change of control
provisions), in each case prior to the date that is ninety-one (91) days after the then Latest
Maturity Date, (iii) such Indebtedness is not at any time guaranteed by any Subsidiaries other than
Subsidiaries that are Guarantors, (iv) such Indebtedness (including any guarantee thereof) is not
secured by any Lien on any property or assets of Borrower or any Restricted Subsidiary and (v) the
other terms and conditions of such Indebtedness (excluding pricing, premiums and optional
prepayment or optional redemption provisions) are customary market terms for Indebtedness of such
type and, in any event, when taken as a whole, are not more favorable to the lenders or investors
providing such Indebtedness than the terms and conditions of the applicable Loans being refinanced
(except with respect to any terms (including covenants) and conditions contained in such
Indebtedness that are applicable only after the then Latest Maturity Date) and (vi) no Event of
Default shall exist immediately prior to or after giving effect to such incurrence.



“Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land
trusts, business trusts or other organizations, whether or not legal entities, and
Governmental Authorities.


 


31









 





“Platform” as defined in Section 5.01(l).



“Prime Rate” means the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank as its prime rate in effect at its office located at 270 Park Avenue, New York,
New York; each change in the Prime Rate shall be effective from and including the date such change
is publicly announced as being effective.



“Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Borrower, Administrative Agent and each Lender.



“Projections” as defined in Section 4.08.



“Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Term Loan of any Lender, the percentage obtained by dividing (a) the Term Loan
Exposure of that Lender by (b) the aggregate Term Loan Exposure of all Lenders; and (ii) with
respect to all payments, computations and other matters relating to the Revolving Commitment or
Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein
by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage
obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving
Exposure of all Lenders. For all other purposes with respect to each Lender, “Pro Rata Share”
means the percentage obtained by dividing (A) an amount equal to the sum of the Term Loan Exposure,
the Revolving Exposure of that Lender, by (B) an amount equal to the sum of the aggregate Term Loan
Exposure and the aggregate Revolving Exposure of all Lenders.



“Public Lenders” means Lenders that do not wish to receive material non-public information
with respect to Borrower, its Subsidiaries or their securities.



“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



“Recipient” means, as applicable, (a) Administrative Agent, (b) any Lender and (c) the Issuing
Bank.



“Refinanced Revolving Commitment” as defined in Section 11.05(d).



“Refinanced Term Loan” as defined in Section 11.05(d).



“Refinancing Amendment” as defined in Section 11.05(d).



“Refunded Swing Line Loans” as defined in Section 2.03(b)(iv).



“Register” as defined in Section 2.07(b).


 


32









 





“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.



“Regulation FD” means Regulation FD as promulgated by the U.S. Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.



“Reimbursement Date” as defined in Section 2.04(d).



“Related Agreements” means, collectively, the Tender Offer Documents and the Senior Note
Documents.



“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.



“Remaining Senior Notes” means at any time Senior Notes not purchased pursuant to the Tender
Offer and remaining outstanding at such time.



“Replacement Revolving Commitment Termination Date” means the date the Replacement Revolving
Commitments are permanently reduced to zero pursuant to the applicable Refinancing Amendment.



“Replacement Revolving Commitments” as defined in Section 11.05(d).



“Replacement Revolving Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Replacement Revolving Loans of such Lender.



“Replacement Revolving Loan” as defined in Section 11.05(d).



“Replacement Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Replacement Term Loans of such Lender.



“Replacement Term Loans” as defined in Section 11.05(d).



“Replacement Term Loan Maturity Date” means the date on which the applicable Replacement Term
Loans become due and payable in full pursuant to the applicable Refinancing Amendment.



“Repricing Transaction” means the prepayment or refinancing of all or a portion of the Term
Loans with the incurrence by Borrower of any bank debt financing having an effective Weighted
Average Yield that is less than the Weighted Average Yield of the Term Loans, including without
limitation, as may be effected through any amendment to this Agreement relating to the interest
rate for, or Weighted Average Yield of, the Term Loans.


 


33









 





“Requisite Lenders” means one or more Lenders having or holding Term Loan Exposure, and/or
Revolving Exposure and representing more than 50% of the sum of (i) the aggregate Term Loan
Exposure of all Lenders and (ii) the aggregate Revolving Exposure of all Lenders.



“Reserved Funds” means for any Fiscal Year of Borrower, amounts not expended during such
Fiscal Year, but designated by Borrower as committed or projected to be paid within 365 days after
the end thereof, in each case in respect of one or more Consolidated Capital Expenditures,
Investments or Permitted Acquisitions (collectively, a “Permitted Reserved Funds Use”), provided
that as of any date of determination of Consolidated Excess Cash Flow, Borrower or one or more of
its Restricted Subsidiaries has either (i) entered into a legally binding commitment to expend such
funds on such Permitted Reserved Funds Use or (ii) deposited such funds into a segregated account
identified as the “Reserved Funds Account” to, and maintained with Administrative Agent. Any
amounts designated as Reserved Funds may, to the extent no longer held or being used for a
Permitted Reserved Funds Use, be redesignated by a certificate of a Financial Officer of Borrower
to the Administrative Agent, as no longer being Reserved Funds.



“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Borrower or any of its Subsidiaries (or any
direct or indirect parent of Borrower) now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class; (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Borrower or any of its Restricted Subsidiaries (or
any direct or indirect parent thereof) now or hereafter outstanding; (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Borrower or any of its Restricted Subsidiaries (or any direct or
indirect parent of Borrower) now or hereafter outstanding; and (iv) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in substance or legal defeasance), sinking fund or similar payment with respect to, any
Subordinated Indebtedness.



“Restricted Subsidiary” means at any time any Subsidiary of Borrower other than an
Unrestricted Subsidiary.



“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, is set forth on Appendix A, in the applicable
Assignment Agreement, in a Joinder Agreement or in a Refinancing Amendment, as applicable, subject
to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount
of the Revolving Commitments as of the Closing Date is $100,000,000.



“Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.


 


34









 





“Revolving Commitment Termination Date” means (x) the earliest to occur of (i) October 19,
2011, if the Term Loans are not made on or before that date; (ii) October
12, 2016, (iii) the date the Revolving Commitments are permanently reduced to zero pursuant to
Section 2.13(b) or 2.14, and (iv) the date of the termination of the Revolving Commitments pursuant
to Section 9.01, (y) the New Revolving Loan Maturity Date or (z) the Replacement Revolving
Commitment Termination Date, as applicable.



“Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line
Loans.



“Revolving Loan” means a Loan made by a Lender to Borrower pursuant to Section 2.02(a) and/or
a New Revolving Loan and/or a Replacement Revolving Loan.



“Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, restated, supplemented or otherwise modified from time to time.



“S&P” means Standard & Poor’s, a Division of The McGraw -Hill Companies, Inc.



“Satellite” means any satellite owned by, or leased to, Borrower or any of its Restricted
Subsidiaries, including, without limitation, any satellite purchased pursuant to the terms of a
satellite purchase agreement, whether such satellite is in the process of manufacture, has been
delivered for launch or is in orbit (whether or not in operational service).



“Secured Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement among one
or more Credit Parties and a Lender Counterparty.



“Secured Parties” has the meaning assigned to that term in the Collateral Agency Agreement.



“Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing; provided that “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.



“Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.


 


35









 





“Securities Pledge Agreement” means the Securities Pledge Agreement, dated as of April 28,
2009, among the Collateral Agent, Borrower, each other Grantor and the other parties thereto.



“Security Agreement” means the Security Agreement, dated as of April 28, 2009, among the
Collateral Agent, Borrower, each other Grantor and the other parties thereto.



“Senior Notes” means the 10.50% Senior Secured Notes due 2014 of Borrower, issued pursuant to
the Senior Notes Indenture.



“Senior Notes Consent” means the solicitation of consents with respect to the Senior Notes to
proposed amendments to the Senior Notes Indenture, providing for, among other things, elimination
or modification of substantially all of the restrictive covenants and certain events of default.



“Senior Notes Documents” means the Senior Notes Indenture and the Senior Notes Security
Documents.



“Senior Notes Indenture” means the Indenture dated as of April 28, 2009 among Borrower, as
issuer, the guarantors party thereto and U.S. Bank National Association, as trustee.



“Senior Notes Security Documents” means the “Security Documents” as defined in the Senior
Notes Indenture.



“Senior Representative” means, with respect to any series of Permitted First Priority
Refinancing Debt or Permitted Second Priority Refinancing Debt, the trustee, administrative agent,
collateral agent, security agent or similar agent under the indenture or agreement pursuant to
which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of
their successors in such capacities.



“Series” means a series of Loans.



“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Borrower
substantially in the form of Exhibit G 2.



“Solvent” means, with respect to the Credit Parties, taken as a whole, that as of the date of
determination, (a) the sum of debt (including contingent liabilities) of the Credit Parties, taken
as a whole, does not exceed the present fair saleable value of the present assets of the Credit
Parties, taken as a whole; (b) the capital of the Credit Parties, taken as a whole, is not
unreasonably small in relation to the business of the Credit Parties, taken as a whole, as
contemplated on the Closing Date or with respect to any transaction contemplated to be undertaken
after the Closing Date, as contemplated as of the date thereof; and (c) the Credit Parties have not
incurred and do not intend to incur, or believe (nor should it reasonably believe) that they will
incur, debts beyond its ability to pay such debts as they become due (whether at maturity or
otherwise). For purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability
(irrespective of whether such contingent liabilities meet the criteria for accrual under
Statement of Financial Accounting Standard No. 5).


 


36









 





“Subject Transaction” as defined in Section 1.02(b).



“Subordinated Indebtedness” means any subordinated debt permitted under Section 6.01.



“Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of a “qualifying
share” of the former Person shall be deemed to be outstanding.



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



“Swing Line Lender” means JPMorgan Chase Bank, in its capacity as Swing Line Lender hereunder,
together with its permitted successors and assigns in such capacity.



“Swing Line Loan” means a Loan made by Swing Line Lender to Borrower pursuant to Section 2.03.



“Swing Line Note” means a promissory note in the form of Exhibit B 3, as it may be amended,
restated, supplemented or otherwise modified from time to time.



“Swing Line Sublimit” means the lesser of (i) $20,000,000, and (ii) the aggregate unused
amount of Revolving Commitments then in effect.



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



“Telecommunications Approval” means an order, instrument or approval of any applicable
Telecommunications Authority granting Borrower authority to construct, launch, operate and maintain
each of the Satellites and TTC&M Facilities used in connection with the DigitalGlobe Business,
including national and local telecommunications licenses and compliance with International
Telecommunication Union procedures and requirements.


 


37









 





“Telecommunications Authority” means the FCC and NOAA, or any successor agency thereto.



“Tender Offer” means the offer by Borrower to purchase for cash any and all of the outstanding
Senior Notes.



“Tender Offer Documents” means (i) Senior Notes Consent and (ii) the Offer to Purchase and
Consent Solicitation Statement and the related Letter of Transmittal, each dated September 21,
2011, as each may be amended and supplemented from time to time.



“Term Loan” means a loan made by a Lender to Borrower pursuant to Section 2.01(a) and/or a New
Term Loan and/or a Replacement Term Loan, as applicable.



“Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Term Loan
and/or a New Term Loan and/or a Replacement Term Loan, as applicable, and “Term Loan Commitments”
means such commitments of all Lenders in the aggregate. The amount of each Lender’s Term Loan
Commitment, if any, is set forth in the applicable Assignment Agreement, in the applicable Joinder
Agreement or in the applicable Refinancing Amendment, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. The aggregate amount of the Term Loan Commitments as
of the Closing Date is $500,000,000.



“Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the
outstanding principal amount of the Term Loans of such Lender; provided, at any time prior to the
making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term
Loan Commitment.



“Term Loan Maturity Date” means (x) the earlier of (i) the seventh anniversary of the Closing
Date, and (ii) the date on which all Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise, (y) the New Term Loan Maturity Date and (z) the Replacement
Term Loan Maturity Date, as applicable.



“Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
restated, supplemented or otherwise modified from time to time.



“Total Failure” has the meaning ascribed to that term or a term substantially similar to such
term in the launch and initial operations insurance or the orbit insurance Borrower or any
Restricted Subsidiary of Borrower is required to obtain pursuant to Section 5.05, whichever is then
in effect.



“Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.



“Transaction Costs” means the fees, costs and expenses payable by Borrower or any of
Borrower’s Restricted Subsidiaries on or before the Closing Date in connection with the
transactions contemplated by the Credit Documents and the Related Agreements.


 


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“TTC&M Facilities” means the facilities and other ground equipment necessary for the tracking,
telemetry, control and monitoring of any Satellite operated by or on behalf of Borrower or any
Restricted Subsidiary of Borrower in connection with the DigitalGlobe Business and includes such
facilities and such other ground equipment located at the Mission Control Center and at Fairbanks,
Alaska, Prudhoe Bay, Alaska, Tromsø, Norway and Wilkes-Barre, Pennsylvania.



“Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.



“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect from time to time in any applicable jurisdiction.



“Unrestricted Subsidiary” means (i) DigitalGlobe China Ventures LLC and (ii) any Subsidiary of
Borrower that at the time of determination has previously been designated, and continues to be, an
Unrestricted Subsidiary in accordance with Section 5.14.



“U.S. Government Obligations” means obligations issued or directly and fully guaranteed or
insured by the United States of America or by any agent or instrumentality thereof, provided that
the full faith and credit of the United States of America is pledged in support thereof.



“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the
Code.



“U.S. Tax Certificate” has the meaning assigned to such term in Section 2.20(f)(ii)(D)(2).



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



“Weighted Average Yield” means with respect to any Loan or any other loan or other
Indebtedness, on any date of determination, the weighted average yield to maturity, in each case,
to be determined by the Administrative Agent consistent with generally accepted financial practice,
after giving effect to interest rates and bases, margins, floors, upfront or similar fees or
original issue discount shared with all lenders or holders thereof, but excluding the effect of any
arrangement, structuring, syndication or other fees payable in connection therewith that are not
shared with all lenders or holders thereof] as of the date of such determination.



“Withholding Agent” means any Credit Party and Administrative Agent.



Section 1.02. Accounting Terms; Certain Pro Forma Adjustments.


 


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(a) Accounting Terms. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in effect from time
to time; provided that, if Borrower notifies the Administrative Agent that Borrower requests an
amendment to any provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies Borrower that the Requisite Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith. All
terms of an accounting or financial nature (including, without limitation, the definitions of
Capital Lease, Consolidated Interest Expense, Consolidated Total Debt and Indebtedness) shall be
construed without giving effect to any changes to the current GAAP accounting model for leases of
the type described in the FASB and IASB joint exposure draft published on August 17, 2010 entitled
“Leases (Topic 840)” or otherwise arising out of the FASB project on lease accounting described in
such exposure draft. Notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial
Liabilities, or any successor thereto (including pursuant to the Accounting Standards
Codification), to value any Indebtedness of Borrower or any Restricted Subsidiary at “fair value”,
as defined therein.



(b) Certain Pro Forma Adjustments. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in Article 7 and any calculation of
the Leverage Ratio or the Interest Coverage Ratio and for purposes of determining the Applicable
Commitment Fee Percentage], Consolidated Adjusted EBITDA, Consolidated Total Debt and Consolidated
Interest Expense shall be calculated with respect to such period on a pro forma basis (including
pro forma adjustments arising out of events which are directly attributable to a specific
transaction, are factually supportable and are expected to have a continuing impact, in each case
determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Securities
Act and as interpreted by the staff of the Securities and Exchange Commission, unless otherwise
agreed to by Administrative Agent, which would include cost savings resulting from head count
reduction, closure of facilities and similar restructuring charges, which pro forma adjustments
shall be certified by the Financial Officer of Borrower) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to be sold and the consolidated
financial statements of Borrower and its Subsidiaries which shall be reformulated as if such
Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been
consummated or incurred or repaid at the beginning of such period (and assuming that such
Indebtedness bears interest during any portion of the applicable measurement period prior to the
relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans
incurred during such period).


 


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Section 1.03 . Interpretation, Etc. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the reference. References
herein to any Section, Appendix, Schedule or Exhibit shall be to a
Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise
specifically provided. The use herein of the word “include” or “including”, when following any
general statement, term or matter, shall not be construed to limit such statement, term or matter
to the specific items or matters set forth immediately following such word or to similar items or
matters, whether or not non-limiting language (such as “without limitation” or “but not limited to”
or words of similar import) is used with reference thereto, but rather shall be deemed to refer to
all other items or matters that fall within the broadest possible scope of such general statement,
term or matter. The terms lease and license shall include sub-lease and sub-license, as
applicable. References to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time (subject to any applicable
restrictions hereunder).



ARTICLE 2

Loans and Letters of Credit




Section 2.01. Term Loans.



(a) Loan Commitments. Subject to the terms and conditions hereof, each Lender severally
agrees to make, on the Closing Date, a Term Loan to Borrower in an amount equal to such Lender’s
Term Loan Commitment. Any amount borrowed under this Section 2.01(a) and subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder
with respect to the Term Loans shall be paid in full no later than the Term Loan Maturity Date.
Each Lender’s Term Loan Commitment shall terminate immediately and without further action on the
Closing Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date.




(b) Borrowing Mechanics for Term Loans.




(i) Subject to Section 2.25, Borrower shall deliver to Administrative Agent a fully
executed Funding Notice no later than three days prior to the Closing Date. Promptly upon
receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify
each Lender of the proposed borrowing.




(ii) Each Lender shall make its Term Loan available to Administrative Agent not later
than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer of same day
funds in Dollars, at the Principal Office designated by Administrative Agent. Upon
satisfaction or waiver of the conditions precedent specified herein, Administrative Agent
shall make the proceeds of the Term Loans available to Borrower on the Closing Date by
causing an amount of same day funds in Dollars equal to the proceeds of all such Loans
received by Administrative Agent from Lenders to be credited to the account of Borrower at
the Principal Office designated by Administrative Agent or to such other account as may be
designated in writing to Administrative Agent by Borrower.



Section 2.02. Revolving Loans.


 


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(a) Revolving Commitments. During the Revolving Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make Revolving Loans to Borrower in an aggregate
amount up to but not exceeding such Lender’s Revolving Commitment; provided, that after giving
effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant to this
Section 2.02(a) may be repaid and reborrowed during the Revolving Commitment Period. Each Lender’s
Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving
Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving
Commitments shall be paid in full no later than such date.



(b) Borrowing Mechanics for Revolving Loans.




(i) Except pursuant to 2.04(d), Revolving Loans that are Base Rate Loans shall be
made in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount.




(ii) Subject to Section 2.24, whenever Borrower desires that Lenders make Revolving
Loans, Borrower shall deliver to Administrative Agent a fully executed and delivered
Funding Notice no later than 12:00 p.m. (New York City time) at least three Business Days
in advance of the proposed Credit Date in the case of a Eurodollar Rate Loan, and at least
one Business Day in advance of the proposed Credit Date in the case of a Revolving Loan
that is a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for a
Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and after the
related Interest Rate Determination Date, and Borrower shall be bound to make a borrowing
in accordance therewith.




(iii) Notice of receipt of each Funding Notice in respect of Revolving Loans,
together with the amount of each Lender’s Pro Rata Share thereof, if any, together with
the applicable interest rate, shall be provided by Administrative Agent to each applicable
Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent
shall have received such Funding Notice by 12:00 p.m. (New York City time)) not later than
3:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such
Funding Notice from Borrower.




(iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable
Credit Date by wire transfer of same day funds in Dollars, at the Principal Office of
Administrative Agent. Except as provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make the proceeds of
such Revolving Loans available to Borrower on the applicable Credit Date by causing an
amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans
received by Administrative Agent from Lenders to be credited to the account of Borrower at
the Principal Office designated by Administrative Agent or such other account as may be
designated in writing to Administrative Agent by Borrower.


 


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Section 2.03. Swing Line Loans.



(a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, Swing Line Lender may, from time to time in its discretion, agree to
make Swing Line Loans to Borrower in the aggregate amount up to but not exceeding the Swing Line
Sublimit; provided, that after giving effect to the making of any Swing Line Loan, in no event
shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect. Amounts borrowed pursuant to this Section 2.03 may be repaid and reborrowed during the
Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall expire on the
Revolving Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder
with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later
than such date.



(b) Borrowing Mechanics for Swing Line Loans.




(i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount.




(ii) Subject to Section 2.24, whenever Borrower desires that Swing Line Lender make a
Swing Line Loan, Borrower shall deliver to Administrative Agent a Funding Notice no later
than 12:00 p.m. (New York City time) on the proposed Credit Date.




(iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 3:00 p.m.(New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds of such Swing
Line Loans available to Borrower on the applicable Credit Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by
Administrative Agent from Swing Line Lender to be credited to the account of Borrower at
Administrative Agent’s Principal Office, or to such other account as may be designated in
writing to Administrative Agent by Borrower.




(iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Borrower pursuant to Section 2.13, Swing Line Lender may at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later
than 12:00 p.m. (New York City time) at least one Business Day in advance of the proposed
Credit Date, a notice (which shall be deemed to be a Funding Notice given by Borrower)
requesting that each Lender holding a Revolving Commitment make Revolving Loans that are
Base Rate Loans to Borrower on such Credit Date in an amount equal to the amount of such
Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is
given which Swing Line Lender requests Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made
by the Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the day



 


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such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded
Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by
Swing Line Lender to Borrower, and such portion of the Swing Line Loans deemed to be so
paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under
the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line
Lender’s outstanding Revolving Loans to Borrower and shall be due under the Revolving Loan
Note issued by Borrower to Swing Line Lender. Borrower hereby authorizes Administrative
Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and
Swing Line Lender (up to the amount available in each such account) in order to
immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the
extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loans
deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded
Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to Swing
Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in
bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders in the manner contemplated
by Section 2.17.




(v) If for any reason Revolving Loans are not made pursuant to Section 2.03(b)(iv) in
an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed
to, and hereby agrees to, have purchased a participation in such outstanding Swing Line
Loans, and in an amount equal to its Pro Rata Share of the applicable unpaid amount
together with accrued interest thereon. Upon one Business Day’s notice from Swing Line
Lender, each Lender holding a Revolving Commitment shall deliver to Swing Line Lender an
amount equal to its respective participation in the applicable unpaid amount in same day
funds at the Principal Office of Swing Line Lender. In the event any Lender holding a
Revolving Commitment fails to make available to Swing Line Lender the amount of such
Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled
to recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line Lender for the correction of
errors among banks and thereafter at the Base Rate, as applicable.




(vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line
Loans pursuant to the second preceding paragraph and each Lender’s obligation to purchase
a participation in any unpaid Swing Line Loans pursuant to the immediately preceding
paragraph shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, any Credit Party or any other Person
for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of
Default; (C) any adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of any Credit Party; (D) any breach of this
Agreement or any other Credit Document by any party thereto; or (E) any other
circumstance, happening or event whatsoever, whether or not



 


44









 






similar to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that Swing Line Lender had not received prior notice from
Borrower or the Requisite Lenders that any of the conditions under Section 3.02 to the
making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were
not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were
made; and (2) Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if
it has elected not to do so after the occurrence and during the continuation of a Default
or Event of Default, (B) it does not in good faith believe that all conditions under
Section 3.02 to the making of such Swing Line Loan have been satisfied or waived by the
Requisite Lenders or (C) at a time when any Lender is a Defaulting Lender unless Swing
Line Lender has entered into arrangements satisfactory to it and Borrower to eliminate
Swing Line Lender’s risk with respect to the Defaulting Lender’s participation in such
Swing Ling Loan, including by cash collateralizing such Defaulting Lender’s Pro Rata Share
of the outstanding Swing Line Loans.



(c) Resignation and Removal of Swing Line Lender. Swing Line Lender may resign as Swing Line
Lender upon 30 days prior written notice to Administrative Agent, Lenders and Borrower. Swing Line
Lender may be replaced at any time by written agreement among Borrower, Administrative Agent, the
replaced Swing Line Lender (provided that no consent will be required if the replaced Swing Line
Lender has no Swing Line Loans outstanding or such Swing Line Loans will be prepaid on the
effective date of removal) and the successor Swing Line Lender. Administrative Agent shall notify
the Lenders of any such replacement of Swing Line Lender. At the time any such replacement or
resignation shall become effective, (i) Borrower shall prepay any outstanding Swing Line Loans made
by the resigning or removed Swing Line Lender, (ii) upon such prepayment, the resigning or removed
Swing Line Lender shall surrender any Swing Line Note held by it to Borrower for cancellation, and
(iii) Borrower shall issue, if so requested by the successor Swing Line Loan Lender, a new Swing
Line Note to the successor Swing Line Lender, in the principal amount of the Swing Line Loan
Sublimit then in effect and with other appropriate insertions. From and after the effective date of
any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights
and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made
thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to
such successor or to any previous Swing Line Lender, or to such successor and all previous Swing
Line Lenders, as the context shall require.



Section 2.04. Issuance of Letters of Credit and Purchase of Participations Therein.



(a) Letters of Credit. During the Revolving Commitment Period, subject to the terms and
conditions hereof, Issuing Bank agrees to issue Letters of Credit (or amend, renew or extend an
outstanding Letter of Credit) for the account of Borrower in the aggregate amount up to but not
exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated
in Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $50,000 or such
lesser amount as is acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no
event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage
exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any standby Letter of
Credit have an expiration date later than the earlier of (1) five days prior



 


45









 






to the Revolving Commitment Termination Date and (2) the date which is one year from the date
of issuance of such standby Letter of Credit; and (vi) in no event shall any commercial Letter of
Credit (x) have an expiration date later than the earlier of (1) the Revolving Loan Commitment
Termination Date and (2) the date which is 180 days from the date of issuance of such commercial
Letter of Credit or (y) be issued if such commercial Letter of Credit is otherwise unacceptable to
Issuing Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank may agree that a
standby Letter of Credit will automatically be extended for one or more successive periods not to
exceed one year each, unless Issuing Bank elects not to extend for any such additional period;
provided, Issuing Bank shall not extend any such Letter of Credit if it has received written notice
that an Event of Default has occurred and is continuing at the time Issuing Bank must elect to
allow such extension; provided, further, if any Lender is a Defaulting Lender, Issuing Bank shall
not be required to issue any Letter of Credit unless Issuing Bank has entered into arrangements
satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation
in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting
Lender’s Pro Rata Share of the Letter of Credit Usage.



(b) Notice of Issuance. Subject to Section 2.24, whenever Borrower desires the issuance of a
Letter of Credit, it shall deliver to Administrative Agent an Issuance Notice no later than 12:00
p.m. (New York City time) at least three Business Days (in the case of standby letters of credit)
or five Business Days (in the case of commercial letters of credit), or in each case such shorter
period as may be agreed to by Issuing Bank in any particular instance, in advance of the proposed
date of issuance. Upon satisfaction or waiver of the conditions set forth in Section 3.02, Issuing
Bank shall issue the requested Letter of Credit only in accordance with Issuing Bank’s standard
operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a
Letter of Credit, Issuing Bank shall promptly notify each Lender with a Revolving Commitment of
such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or
modification to a Letter of Credit and the amount of such Lender’s respective participation in
such Letter of Credit pursuant to Section 2.04(e).



(c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In
determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Borrower and Issuing
Bank, Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher;


 


46









 





(v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such Letter of Credit or of
the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of Issuing Bank, including any Governmental Acts; none of the above shall
affect or impair, or prevent the vesting of, any of Issuing Bank’s rights or powers hereunder.
Without limiting the foregoing and in furtherance thereof, any action taken or omitted by Issuing
Bank under or in connection with the Letters of Credit or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not give rise to any liability on the part of
Issuing Bank to Borrower. Notwithstanding anything to the contrary contained in this Section
2.04(c), Borrower shall retain any and all rights it may have against Issuing Bank for any
liability arising solely out of the gross negligence or willful misconduct of Issuing Bank as
determined by a final, non-appealable judgment of a court of competent jurisdiction.



(d) Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit. In the event
Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Borrower and Administrative Agent, and Borrower shall reimburse Issuing Bank on or before
the Business Day immediately following the date on which such drawing is honored (the
“Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of such
honored drawing; provided, anything contained herein to the contrary notwithstanding, (i) unless
Borrower shall have notified Administrative Agent and Issuing Bank prior to 12:00 p.m. (New York
City time) on the date such drawing is honored that Borrower intends to reimburse Issuing Bank for
the amount of such honored drawing with funds other than the proceeds of Revolving Loans, Borrower
shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders
with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement
Date in an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in Section 3.02, Lenders with Revolving
Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied directly by Administrative
Agent to reimburse Issuing Bank for the amount of such honored drawing; and provided further, if
for any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement
Date in an amount equal to the amount of such honored drawing, Borrower shall reimburse Issuing
Bank, on demand, in an amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing
in this Section 2.04(d) shall be deemed to relieve any Lender with a Revolving Commitment from its
obligation to make Revolving Loans on the terms and conditions set forth herein, and Borrower shall
retain any and all rights it may have against any such Lender resulting from the failure of such
Lender to make such Revolving Loans under this Section 2.04(d).



(e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance
of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have
purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in such
Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata
Share (with respect to the Revolving Commitments) of the maximum amount which is or at any time may
become available to be drawn thereunder. In the event that Borrower shall fail for any reason to
reimburse Issuing Bank as provided in Section 2.04(d), Issuing Bank shall promptly



 


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notify each Lender with a Revolving Commitment of the unreimbursed amount of such honored
drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share
of the Revolving Commitments. Each Lender with a Revolving Commitment shall make available to
Administrative Agent, for the account of Issuing Bank, an amount equal to its respective
participation, in Dollars and in same day funds, no later than 12:00 p.m. (New York City time) on
the first business day (under the laws of the jurisdiction in which the Principal Office of
Administrative Agent is located) after the date notified by Issuing Bank. In the event that any
Lender with a Revolving Commitment fails to make available to Administrative Agent on such business
day the amount of such Lender’s participation in such Letter of Credit as provided in this Section
2.04(e), Issuing Bank shall be entitled to recover such amount on demand from such Lender together
with interest thereon for three Business Days at the rate customarily used by Issuing Bank for the
correction of errors among banks and thereafter at the Base Rate. Nothing in this Section 2.04(e)
shall be deemed to prejudice the right of any Lender with a Revolving Commitment to recover from
Issuing Bank any amounts made available by such Lender to Issuing Bank pursuant to this Section in
the event that the payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank. In
the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.04(e)
for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such
Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this
Section 2.04(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments
subsequently received by Issuing Bank from Borrower in reimbursement of such honored drawing when
such payments are received. Any such distribution shall be made to a Lender at its primary address
set forth below its name on Appendix B or at such other address as such Lender may request.



(f) Obligations Absolute. The obligation of Borrower to reimburse Issuing Bank for drawings
honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders
pursuant to Section 2.04(d) and the obligations of Lenders under Section 2.04(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set off, defense or other
right which Borrower or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Borrower, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Borrower or one of its Restricted Subsidiaries and the beneficiary
for which any Letter of Credit was procured); (iii) any draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any
Letter of Credit against presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its
Restricted Subsidiaries; (vi) any breach hereof or any other Credit Document by any party thereto;
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (viii) the fact that an Event of Default or a Default shall have occurred and be
continuing; provided, in each case, that payment by Issuing Bank under the applicable Letter of
Credit shall not have constituted gross negligence or
willful misconduct of Issuing Bank under the circumstances in question as determined by a
final, non-appealable judgment of a court of competent jurisdiction.


 


48









 





(g) Indemnification. Without duplication of any obligation of Borrower under Section 11.02 or
11.03, in addition to amounts payable as provided herein, Borrower hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which Issuing Bank may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing
Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction or (2)
the wrongful dishonor by Issuing Bank of a proper demand for payment made under any Letter of
Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any such Letter
of Credit as a result of any Governmental Act.



(h) Resignation and Removal of Issuing Bank. An Issuing Bank may resign as Issuing Bank upon
60 days prior written notice to Administrative Agent, Lenders and Borrower. An Issuing Bank may be
replaced at any time by written agreement among Borrower, Administrative Agent, the replaced
Issuing Bank (provided that no consent will be required if the replaced Issuing Bank has no Letters
of Credit or Reimbursement Obligations with respect thereto outstanding) and the successor Issuing
Bank. Administrative Agent shall notify the Lenders of any such replacement of such Issuing Bank.
At the time any such replacement or resignation shall become effective, Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank. From and after the effective
date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the
rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to
be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer
to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement or resignation of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto to the extent that Letters of
Credit issued by it remain outstanding and shall continue to have all the rights and obligations of
an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such
replacement or resignation, but shall not be required to issue additional Letters of Credit.



(i) Cash Collateral. If any Event of Default shall occur and be continuing, on the Business
Day that Borrower receives notice from Administrative Agent or the Requisite Lenders (or, if the
maturity of the Loans has been accelerated, Lenders with Letter of Credit Usage representing
greater than 50% of the total Letter of Credit Usage) demanding the deposit of cash collateral
pursuant to this paragraph, Borrower shall deposit in an account with Administrative Agent, in the
name of Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the
Letter of Credit Usage as of such date plus any accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to Borrower described in Section 9.01(f) or Section
9.01(g). Such deposit shall be held by Administrative Agent as collateral for the payment and
performance of the obligations of Borrower under this Agreement. Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on



 


49









 






the investment of such deposits, which investments shall be made at the option and sole
discretion of Administrative Agent and at Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by Administrative Agent to reimburse the Issuing Bank for
any disbursements under Letters of Credit made by it and for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations
of Borrower for the Letter of Credit Usage at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with Letter of Credit Usage representing greater
than 50% f the total Letter of Credit Usage), be applied to satisfy other obligations of Borrower
under this Agreement. If Borrower is required to provide an amount of cash collateral hereunder as
a result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to Borrower within three Business Days after all Events of Default
have been cured or waived.



Section 2.05 . Pro Rata Shares; Availability of Funds.



(a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other Lender’s obligation
to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term
Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of
a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder
or purchase a participation required hereby.



(b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender
prior to the applicable Credit Date that such Lender does not intend to make available to
Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative
Agent may assume that such Lender has made such amount available to Administrative Agent on such
Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Credit Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the correction of
errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does
not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor,
Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.05(b) shall be
deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving
Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a
result of any default by such Lender hereunder.


 


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Section 2.06 . Use of Proceeds. The proceeds of the Term Loans and the Revolving Loans, if
any, made on the Closing Date shall be applied by Borrower to fund
in part the consideration for the Senior Notes validly tendered pursuant to the Tender Offer
and for general corporate purposes, including Permitted Acquisitions and Restricted Junior
Payments. The proceeds of the Revolving Loans, Swing Line Loans and Letters of Credit made after
the Closing Date shall be applied by Borrower for working capital and general corporate purposes of
Borrower and its Restricted Subsidiaries, including Permitted Acquisitions and Restricted Junior
Payments. No portion of the proceeds of any Credit Extension shall be used in any manner that
causes or might cause such Credit Extension or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation
thereof or to violate the Exchange Act.



Section 2.07 . Evidence of Debt; Register; Lenders’ Books and Records; Notes.



(a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account
or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the
Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall
be conclusive and binding on Borrower, absent manifest error; provided, that the failure to make
any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving
Commitments or Borrower’s Obligations in respect of any applicable Loans; and provided further, in
the event of any inconsistency between the Register and any Lender’s records, the recordations in
the Register shall govern.



(b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain
at its Principal Office a register for the recordation of the names and addresses of Lenders and
the Commitments and Loans of, and principal amount of and interest on the Loans owing to, and
drawings under Letters of Credit owing to, each Lender from time to time (the “Register”). The
entries in the Register shall be conclusive in the absence of manifest error, and Borrower, the
Administrative Agent, the Issuing Bank and the Lenders shall treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at
any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall
record, or shall cause to be recorded, in the Register the Commitments and the Loans in accordance
with the provisions of Section 11.06, and each repayment or prepayment in respect of the principal
amount of the Loans, and any such recordation shall be conclusive and binding on Borrower and each
Lender, absent manifest error; provided, that failure to make any such recordation, or any error in
such recordation, shall not affect any Lender’s Commitments or Borrower’s Obligations in respect of
any Loan. Borrower hereby designates Administrative Agent to serve as Borrower’s agent solely for
purposes of maintaining the Register as provided in this Section 2.07, and Borrower hereby agrees
that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its
officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”



(c) Notes. If so requested by any Lender by written notice to Borrower (with a copy to
Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section
11.06) on the Closing Date (or, if such notice is delivered
after the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes to
evidence such Lender’s Term Loan, New Term Loan, Replacement Term Loan, Revolving Loan or Swing
Line Loan, as the case may be.


 


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Section 2.08. Interest on Loans.



(a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




(i) in the case of Term Loans and Revolving Loans:




(A) if a Base Rate Loan, at the Base Rate plus the Applicable Margin for
such Class of Loan; or




(B) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin for such Class of Loan; and




(ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin.



(b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be; provided, until the date on which the Arrangers notify Borrower that the primary
syndication of the Loans and Revolving Commitments has been completed, as determined by the
Arrangers, the Term Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Base Rate Loans.



(c) In connection with Eurodollar Rate Loans there shall be no more than ten (10) Interest
Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan
or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/ Continuation Notice, Borrower shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 12:00 p.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.


 


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(d) Interest payable pursuant to Section 2.08(a) shall be computed (i) in the case of Base
Rate Loans on the basis of a 365 day or 366 day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360 day year, in each case
for the actual number of days elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Term Loan, the last Interest Payment Date with
respect to such Term Loan or, with respect to a Base Rate Loan being converted from a Eurodollar
Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case
may be, shall be included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a
Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan,
as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is
made, one day’s interest shall be paid on that Loan.



(e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily
basis and shall be payable in arrears on each Interest Payment Date with respect to interest
accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable
in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in
arrears at maturity of the Loans, including final maturity of the Loans; provided, however, with
respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable
on the applicable Interest Payment Date.



(f) Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Borrower at a rate equal to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans.



(g) Interest payable pursuant to Section 2.08(f) shall be computed on the basis of a 365/366
day year for the actual number of days elapsed in the period during which it accrues, and shall be
payable on demand or, if no demand is made, on the date on which the related drawing under a Letter
of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of interest
pursuant to Section 2.08(f), Issuing Bank shall distribute to Administrative Agent, for the account
of each Lender, out of the interest received by Issuing Bank in respect of the period from the date
such drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the
amount of such drawing (including any such reimbursement out of the proceeds of any Revolving
Loans), the amount that such Lender would have been entitled to receive in respect of the letter of
credit fee that would have been payable in respect of such Letter of Credit for such period if no
drawing had been honored under such Letter of Credit. In the event Issuing Bank shall have been
reimbursed by Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute
to Administrative Agent, for the account of each Lender which has paid all amounts payable by it
under Section 2.04(e) with respect to such honored drawing such Lender’s Pro Rata Share of any
interest received by Issuing Bank in respect of that portion of such honored drawing so reimbursed
by Lenders for the period from the date on which Issuing Bank was so reimbursed by
Lenders to but excluding the date on which such portion of such honored drawing is reimbursed
by Borrower.


 


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Section 2.09. Conversion/Continuation.



(a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Borrower shall have the option:




(i) to convert at any time all or any part of any Term Loan or Revolving Loan equal
to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type
of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless
Borrower shall pay all amounts due under Section 2.18 in connection with any such
conversion; or




(ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate
Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Loan.



(b) Subject to Section 2.24, Borrower shall deliver a Conversion/ Continuation Notice to
Administrative Agent no later than 12:00 p.m. (New York City time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at
least three Business Days in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein,
a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans
shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall
be bound to effect a conversion or continuation in accordance therewith. If on any day a Loan is
outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been
delivered to Administrative Agent in accordance with the terms hereof specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.



Section 2.10 . Default Interest. Upon the occurrence and during the continuance of an Event
of Default under Section 9.01(a), (f) or (g), the principal amount of all Loans outstanding and, to
the extent permitted by applicable law, any interest payments on the Loans or any fees or other
amounts owed hereunder, shall thereafter bear interest (including post petition interest in any
proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a
rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect
to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2%
per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans that are
Revolving Loans); provided, in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is effective such
Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies
of Administrative Agent or any Lender.


 


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Section 2.11. Fees.



(a) Subject to Section 2.21, Borrower agrees to pay to Lenders having Revolving Exposure:




(i) commitment fees equal to (A) the average of the daily difference between (1) the
Revolving Commitments and (2) the aggregate principal amount of (x) all outstanding
Revolving Loans (for the avoidance of doubt, excluding Swing Line Loans) plus (y) the
Letter of Credit Usage, times (3) the Applicable Commitment Fee Percentage; and




(ii) letter of credit fees equal to (A) the Applicable Margin for Revolving Loans
that are Eurodollar Rate Loans, times (B) the average aggregate daily maximum amount
available to be drawn under all such Letters of Credit (regardless of whether any
conditions for drawing could then be met and determined as of the close of business on any
date of determination).



All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.



(b) Borrower agrees to pay directly to Issuing Bank, for its own account, the following fees:




(i) a fronting fee equal to 0.125%, per annum, times the average aggregate daily
maximum amount available to be drawn under all Letters of Credit (determined as of the
close of business on any date of determination); and




(ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule
for such charges and as in effect at the time of such issuance, amendment, transfer or
payment, as the case may be.



(c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of
a 360 day year and the actual number of days elapsed and shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year during the Revolving Commitment
Period, commencing on the first such date to occur after the Closing Date, and on the Revolving
Commitment Termination Date.



(d) Borrower agrees to pay on the Closing Date to each Lender with a Term Loan Commitment on
the Closing Date, as fee compensation for the funding of such Lender’s Loan, a closing fee in an
amount agreed in writing between Borrower and Administrative Agent, payable to such Lender from the
proceeds of its Loan as and when funded on the Closing Date. Such closing fee will be in all
respects fully earned, due and payable on the Closing Date and non-refundable and non-creditable
thereafter.



(e) In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.


 


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Section 2.12 . Scheduled Payments/Commitment Reductions. The principal amounts of the Term
Loans shall be repaid (i) in consecutive quarterly installments, on
the last Business Day of each Fiscal Quarter, beginning with the first Fiscal Quarter of 2012
and ending with the last Fiscal Quarter ending prior to the Term Loan Maturity Date (each such
payment, an “Installment”) in the aggregate principal amount for each such quarterly Installment
equal to (x) the outstanding principal amount of Term Loans on the Closing Date multiplied by (y)
0.25% and (ii) to the extent of the remainder of the outstanding principal amount thereof, together
with all other amounts owed hereunder with respect thereto, on the Term Loan Maturity Date;
provided, in the event any New Term Loans or Replacement Term Loans are made, such New Term Loans
or Replacement Term Loans shall be repaid on the dates and in the amounts specified in the
applicable Joinder Agreement or Refinancing Amendment. Notwithstanding the foregoing, Installments
shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loans in
accordance with Sections 2.13, 2.14 and 2.15, as applicable.



Section 2.13 . Voluntary Prepayments/Commitment Reductions.



(a) Voluntary Prepayments.




(i) Any time and from time to time:




(A) with respect to Base Rate Loans, Borrower may prepay any such Loans on
any Business Day in whole or in part, in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount;




(B) with respect to Eurodollar Rate Loans, Borrower may prepay any such
Loans on any Business Day in whole or in part in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount; and




(C) with respect to Swing Line Loans, Borrower may prepay any such Loans on
any Business Day in whole or in part in an aggregate minimum amount of $500,000,
and in integral multiples of $100,000 in excess of that amount.




(ii) All such prepayments shall be made:




(A) upon not less than one Business Day’s prior written or telephonic
notice in the case of Base Rate Loans;




(B) upon not less than three Business Days’ prior written or telephonic
notice in the case of Eurodollar Rate Loans; and




(C) upon written or telephonic notice on the date of prepayment, in the
case of Swing Line Loans;


 


56









 





in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed by
delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly
transmit such written notice for Term Loans or Revolving Loans, as the case may be, by
telefacsimile or telephone to each Lender) or
Swing Line Lender, as the case may be. Upon the giving of any such notice, the principal amount of
the Loans specified in such notice shall become due and payable on the prepayment date specified
therein; provided, that such notice may state that it is conditioned upon the effectiveness of
other transactions, in which case such notice may be revoked or delayed by Borrower (by notice to
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any such voluntary prepayment shall be applied as specified in Section 2.15(a).



(b) Voluntary Commitment Reductions.




(i) Borrower may, upon not less than three Business Days’ prior written or telephonic
notice promptly confirmed by delivery of written notice thereof to Administrative Agent
(which written notice Administrative Agent will promptly transmit by telefacsimile or
telephone to each applicable Lender), at any time and from time to time terminate in whole
or permanently reduce in part, without premium or penalty, the Revolving Commitments in an
amount up to the amount by which the Revolving Commitments exceed the Total Utilization of
Revolving Commitments at the time of such proposed termination or reduction; provided, any
such partial reduction of the Revolving Commitments shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.




(ii) Borrower’s notice to Administrative Agent shall designate the date (which shall
be a Business Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Commitments shall be
effective on the date specified in Borrower’s notice and shall reduce the Revolving
Commitment of each Lender proportionately to its Pro Rata Share thereof; provided, that
such notice may state that it is conditioned upon the effectiveness of other transactions,
in which case such notice may be revoked or delayed by Borrower (by notice to
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.



(c) In the event that all or any portion of the Term Loans are either repaid through voluntary
repayments or repriced (or effectively refinanced), in each case in connection with a Repricing
Transaction, each Lender holding Term Loans shall be paid an amount equal to 101% of the amount of
such Term Loans repaid or repriced, if such repayment or repricing is effected prior to the one
year anniversary of the Closing Date.



(d) Certain Permitted Term Loan Repurchases.



Notwithstanding anything to the contrary contained in this Section 2.13 or any other provision
of this Agreement, so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, Borrower may repurchase outstanding Term Loans on the following basis:


 


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(i) Borrower may conduct one or more modified Dutch auctions (each, an “Auction”) to
repurchase all or any portion of the Term Loans (such Term Loans, the “Offer Loans”) of
Lenders, provided that, (A) Borrower delivers a notice of the Term Loans that will be
subject to such Auction to Administrative Agent (for distribution to the Lenders) no later
than noon (New York City time) at least three Business Days in advance of a proposed
consummation date of such
Auction indicating (1) the date on which the Auction will conclude, (2) the maximum
principal amount of Term Loans Borrower is willing to purchase in the Auction and (3) the
range of discounts to par at which Borrower would be willing to repurchase the Offer
Loans; (B) the maximum dollar amount of the Auction shall be no less than an aggregate
$1,000,000 or an integral multiple of $500,000 in excess thereof; (C) Borrower shall hold
the Auction open for a minimum period of two Business Days; (D) a Lender who elects to
participate in the Auction may choose to tender all or part of such Lender’s Offer Loans;
(E) the Auction shall be made to Lenders holding the Offer Loans on a pro rata basis in
accordance with their Pro Rata Shares; and (F) the Auction shall be conducted pursuant to
such procedures as Administrative Agent may establish which are consistent with this
Section 2.13(d) and are reasonably acceptable to Borrower and Administrative Agent, that a
Lender must follow in order to have its Offer Loans repurchased;




(ii) With respect to all repurchases made by Borrower pursuant to this Section
2.13(d), (A) Borrower shall pay to the applicable assigning Lender all accrued and unpaid
interest, if any, on the repurchased Term Loans to the date of repurchase of such Term
Loans, (B) Borrower shall represent that, as of the launch date of the related Auction and
the effective date of any Assignment Agreement, it is not in possession of any information
regarding Borrower or its Subsidiaries that may be material to a decision by any Lender to
participate in any Auction or enter into any Assignment Agreement or any of the
transactions contemplated thereby and that has not previously been disclosed to
Administrative Agent and the Lenders (except to the extent that the assigning Lender
expressly waives its right to receive such information), (C) such repurchases shall not be
deemed to be voluntary prepayments pursuant to this Section 2.13, Section 2.15 or Section
2.16 except that the amount of the Loans so repurchased shall be applied on a pro rata
basis to reduce the scheduled remaining Installments of principal on such Term Loans and
(D) borrowings of Revolving Loans shall not be made to directly or indirectly fund any
such repurchase; and




(iii) Following repurchase by Borrower pursuant to this Section 2.13(d), the Term
Loans so repurchased shall, without further action by any Person, be deemed cancelled for
all purposes and no longer outstanding (and may not be resold by Borrower), for all
purposes of this Agreement and all other Credit Documents, including, but not limited to
(A) the making of, or the application of, any payments to the Lenders under this Agreement
or any other Credit Document, (B) the making of any request, demand, authorization,
direction, notice, consent or waiver under this Agreement or any other Credit Document or
(C) the determination of Requisite Lenders, or for any similar or related purpose, under
this Agreement or any other Credit Document. In connection with any Term Loans
repurchased and cancelled pursuant to this Section 2.13(d), Administrative Agent is
authorized to make appropriate entries in the Register to reflect any such cancellation.
Any payment made by Borrower in connection with a repurchase permitted by this Section
2.13(d) shall not be subject to the provisions of either Section 2.16(a) or Section 2.17.
Failure by Borrower to make any payment to a Lender required by an agreement permitted by
this Section 2.13(d) shall not constitute an Event of Default under Section 9.01(a).


 


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Section 2.14. Mandatory Prepayments/Commitment Reductions.



(a) Asset Sales. No later than the second Business Day following the date of receipt by
Borrower or any of its Restricted Subsidiaries of any Net Asset Sale Proceeds, Borrower shall
prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in
Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that so
long as no Event of Default shall have occurred and be continuing, Borrower shall have the option,
directly or through one or more of its Restricted Subsidiaries, to invest (or commit to invest) Net
Asset Sale Proceeds within 12 months of receipt thereof in long term productive assets of the
general type used in the business of Borrower and its Restricted Subsidiaries (or if committed to
be so invested within such 12 months, then invested within 18 months after receipt thereof).



(b) Insurance/Condemnation Proceeds. No later than the later of (i) the second Business Day
following the date of receipt by Borrower or any of its Restricted Subsidiaries, or Administrative
Agent as loss payee, of any Net Insurance/Condemnation Proceeds and (ii) 30 days after the casualty
event or condemnation, Borrower shall prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net
Insurance/Condemnation Proceeds; provided, that (i) so long as no Default or Event of Default shall
have occurred and be continuing both immediately before and after giving effect to such investment
and (ii) to the extent any such Net Insurance/Condemnation Proceeds relate to a Satellite that has
suffered a Partial Failure, Total Failure or Constructive Total Failure, the Borrower shall have
delivered to the Administrative Agent Projections revised to reflect such Partial Failure, Total
Failure or Constructive Total Failure and reasonably satisfactory to the Administrative Agent,
Borrower shall have the option, directly or through one or more of its Restricted Subsidiaries to
invest (or commit to invest) such Net Insurance/Condemnation Proceeds within 12 months of receipt
thereof in long term productive assets of the general type used in the business of Borrower and its
Restricted Subsidiaries, which investment may include the repair, restoration or replacement of the
applicable assets thereof (or if committed to be so invested within such 12 months, then invested
within 18 months after receipt thereof).



(c) Issuance of Debt. On the date of receipt by Borrower or any of its Restricted
Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Borrower or any of its
Restricted Subsidiaries (other than with respect to any Indebtedness permitted to be incurred
pursuant to Section 6.01), Borrower shall prepay Term Loans in an aggregate amount equal to 100% of
such proceeds, net of underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable legal fees and expenses.



(d) Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash
Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2012), Borrower
shall, no later than ninety days after the end of such Fiscal Year, prepay the Loans and/or the
Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate
amount equal to (i) the ECF Percentage of such Consolidated Excess Cash Flow minus (ii) voluntary
repayments of the Loans (excluding repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Commitments are permanently reduced in connection with such repayments).


 


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(e) Revolving Loans and Swing Loans. Borrower shall from time to time prepay first, the Swing
Line Loans, and second, the Revolving Loans to the extent necessary so that the Total Utilization
of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect.



(f) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or reduction of
the Revolving Commitments pursuant to Sections 2.14(a) and 2.14(b), Borrower shall deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the
amount of the applicable net proceeds. In the event that Borrower shall subsequently determine
that the actual amount received exceeded the amount set forth in such certificate, Borrower shall
promptly make an additional prepayment of the Loans and/or the Revolving Commitments shall be
permanently reduced in an amount equal to such excess, and Borrower shall concurrently therewith
deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation
of such excess.



Section 2.15. Application of Prepayments/Reductions.



(a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by Borrower in the applicable notice of
prepayment; provided, in the event Borrower fails to specify the Loans to which any such prepayment
shall be applied, such prepayment shall be applied as follows:




first, to repay outstanding Swing Line Loans to the full extent thereof;




second, to repay outstanding Revolving Loans to the full extent thereof; and




third, to prepay the Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof); and further applied on a pro rata basis
to reduce the scheduled remaining Installments of principal of the Term Loans.



(b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be paid
pursuant to Sections 2.14(a) through 2.14(c) shall be applied as follows:




first, to prepay Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and further applied on a pro rata basis to the
remaining scheduled Installments of principal of the Term Loans;




second, to prepay the Swing Line Loans to the full extent thereof and to permanently
reduce the Revolving Commitments by the amount of such prepayment;




third, to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;


 


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fourth, to prepay outstanding reimbursement obligations with respect to Letters of
Credit and to further permanently reduce the Revolving Loan Commitments by the amount of
such prepayment;




fifth, to cash collateralize Letters of Credit and to further permanently reduce the
Revolving Loan Commitments by the amount of such cash collateralization; and




sixth, to further permanently reduce the Revolving Commitments to the full extent
thereof.



(c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in
each case in a manner which minimizes the amount of any payments required to be made by Borrower
pursuant to Section 2.18(c).



Section 2.16. General Provisions Regarding Payments.



(a) All payments by Borrower of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, recoupment, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York
City time) on the date due at the Principal Office of Administrative Agent for the account of
Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Borrower on the next succeeding
Business Day.



(b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in
respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest then due and payable before application to principal.



(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including all fees payable with respect thereto, to the extent
received by Administrative Agent.



(d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.



(e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply
to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to
Revolving Loans only, such extension of time shall be included in the computation of the
payment of interest hereunder or of the Revolving Commitment fees hereunder.


 


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(f) Borrower hereby authorizes Administrative Agent to charge Borrower’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).



(g) Borrower shall make each payment required to be made by it hereunder or under any other
Credit Document on or before the time expressly required hereunder or under such other Credit
Document for such payment (or, if no such time is expressly required, prior to 12:00 p.m., New York
City Time), on the date when due, in immediately available funds, without setoff, deduction or
counterclaim. Any amounts received after such time on any date shall be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon.



(h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 9.01, all payments or proceeds
received by Agents in respect of any of the Obligations, shall be applied in accordance with the
application arrangements described in Section 10.02 of the Pledge and Security Agreement.



Section 2.17. Ratable Sharing.



(a) Lenders hereby agree among themselves that , except as otherwise provided in the
Collateral Documents with respect to amounts realized from the exercise of rights with respect to
Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of
any right of set off or banker’s lien, by counterclaim or cross action or by the enforcement of any
right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as
cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and
other amounts then due and owing to such Lender hereunder or under the other Credit Documents
(collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and
each other Lender of the receipt of such payment and (b) apply a portion of such payment to
purchase participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all
or part of such proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those
purchases shall be rescinded and the purchase prices paid for such participations shall be returned
to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower
expressly consents to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker’s lien, consolidation, set off or counterclaim
with respect to any and all monies owing by Borrower to that
holder with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder. The provisions of this Section 2.17 shall not be construed to
apply to (i) any payment made by Borrower pursuant to and in accordance with the express terms of
this Agreement or (ii) any payment obtained by any Lender as consideration for the assignment or
sale of a participation in any of its Loans or other Obligations owed to it.


 


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(b) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.03(b), Section 2.04(e), Section 2.04(d), or Section 10.06, then Administrative Agent may, in its
discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter
received by Administrative Agent for the account of such Lender for the benefit of Administrative
Agent, the Swing Line Lender or the Issuing Bank to satisfy such Lender’s obligations to it under
such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such
amounts in a segregated account as cash collateral for, and application to, any future funding
obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii)
above, in any order as determined by Administrative Agent in its discretion.



Section 2.18. Making or Maintaining Eurodollar Rate Loans.



(a) Inability to Determine Applicable Interest Rate. In the event that Administrative Agent
shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans,
that by reason of circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in
the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise
to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given
by Borrower with respect to the Loans in respect of which such determination was made shall be
deemed to be rescinded by Borrower.



(b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date
any Lender shall have determined (which determination shall be final and conclusive and binding
upon all parties hereto) that the making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the London
interbank market or the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give notice (by e-mail, telefacsimile
or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other Lender). If
Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding
sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause (ii) of the
preceding sentence, then (i) the obligation of the Lenders (or, in the case of any notice pursuant
to clause (i)



 


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of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar
Rate Loans shall be suspended until such notice shall be withdrawn by each Affected Lender, (ii) to
the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being
requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders
(or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall
make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base
Rate Loan, (iii) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding
sentence, such Lender’s) obligations to maintain their respective outstanding Eurodollar Rate Loans
(the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when required by law, and (iv)
the Affected Loans shall automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as
described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a
Funding Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the
provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as
to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written
notice thereof) to Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission Administrative
Agent shall promptly transmit to each other Lender).



(c) Compensation for Breakage or Non Commencement of Interest Periods. Borrower shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection
with the liquidation or re employment of such funds but excluding loss of anticipated profits)
which such Lender may sustain: (A) if for any reason (other than a default by such Lender) a
borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar
Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a
telephonic request for conversion or continuation; (B) if any prepayment or other principal payment
of, or any conversion of, any of its Eurodollar Rate Loans (including in connection with the
replacement of a Lender pursuant to Section 2.22) occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or (C) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Borrower.



(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate
Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such
Lender



(e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts
payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such
Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore
office of such Lender to a domestic office of such Lender in the United States of America;
provided, however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit
and the foregoing assumptions shall be utilized only for the purposes of calculating amounts
payable under this Section 2.18 and under Section 2.19.


 


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Section 2.19 . Increased Costs; Capital Adequacy.



(a) If any Change in Law shall:




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




(ii) impose on any Lender or the Issuing Bank or the London interbank market any
other condition, cost or expense affecting this Agreement or Loans made by such Lender or
any Letter of Credit or participation therein;




(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in clause (c) of the definition of Excluded Taxes and (C) Other Connection Taxes
that are imposed on or measured by net income, however denominated, or that are franchise
Taxes or branch profits Taxes) on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or capital
attributable thereto;



and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such
Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of
participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether
of principal, interest or otherwise), then Borrower will pay to such Lender, the Issuing Bank or
such other Recipient, as the case may be, such additional amount or amounts as will compensate such
Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs
incurred or reduction suffered.



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


 


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(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to Borrower and shall be
conclusive absent manifest error. Borrower shall pay such Lender or the Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 15 days after receipt thereof.



(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that Borrower shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than
270 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the Issuing Banks intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of retroactive effect
thereof.



Section 2.20. Taxes; Withholding, Etc.



(a) Withholding Taxes; Gross-Up. Each payment by any Credit Party under any Credit Document
shall be made without withholding for any Taxes, unless such withholding is required by law. If
any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so
required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the
full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable
law. If such Taxes are Indemnified Taxes, then the amount payable by any Credit Party shall be
increased as necessary so that net of such withholding (including withholding applicable to
additional amounts payable under this Section) the applicable Recipient receives the amount it
would have received had no such withholding been made.



(b) Payment of Other Taxes by Borrower. Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.



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



(d) Indemnification by Borrower. The Credit Parties shall jointly and severally indemnify
each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in connection
with any Credit Document (including amounts paid or payable under this Section 2.20(d)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.20(d) shall be paid within 10 days after the Recipient delivers to
the Borrower a certificate stating the amount of any Indemnified Taxes so paid or payable by such
Recipient or Beneficial Owner and describing in reasonable detail the calculation of and
the basis for the indemnification claim. Such certificate shall be conclusive of the amount
so paid or payable absent manifest error. Such Recipient shall deliver a copy of such certificate
to Administrative Agent.


 


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(e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative
Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Credit
Party has not already indemnified Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Credit Parties to do so) attributable to such Lender that are paid
or payable by Administrative Agent in connection with any Credit Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 2.20(e) shall be paid within 10 days after Administrative Agent or the applicable Credit
Party (as applicable) delivers to the applicable Lender a certificate stating the amount of Taxes
so paid or payable by Administrative Agent or the applicable Credit Party (as applicable). Such
certificate shall be conclusive of the amount so paid or payable absent manifest error.




(f) Status of Lenders.




(i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under any Credit Document shall deliver to
Borrower and Administrative Agent, at the time or times reasonably requested by Borrower
or Administrative Agent, such properly completed and executed documentation reasonably
requested by Borrower or Administrative Agent as will permit such payments to be made
without, or at a reduced rate of, withholding. In addition, any Lender, if requested by
Borrower or Administrative Agent, shall deliver such other documentation prescribed by law
or reasonably requested by Borrower or Administrative Agent as will enable Borrower or
Administrative Agent to determine whether or not such Lender is subject to any withholding
(including backup withholding) or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section
2.20(f)(ii)(A) through (E) below) shall not be required if in the Lender’s judgment such
completion, execution or submission would subject such Lender to any material unreimbursed
cost or expense (or, in the case of a Change in Law, any incremental material unreimbursed
cost or expense) or would materially prejudice the legal or commercial position of such
Lender. Upon the reasonable request of such Borrower or Administrative Agent, any Lender
shall update any form or certification previously delivered pursuant to this Section 2.20.
If any form or certification previously delivered pursuant to this Section expires or
becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall
promptly (and in any event within 10 days after such expiration, obsolescence or
inaccuracy) notify such Borrower and Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible
to do so.




(ii) Without limiting the generality of the foregoing, if Borrower is a U.S. Person,
any Lender with respect to such Borrower shall, if it is legally eligible to do so,
deliver to such Borrower and Administrative Agent (in such
number of copies reasonably requested by such Borrower and Administrative Agent) on
or prior to the date on which such Lender becomes a party hereto, duly completed and
executed copies of whichever of the following is applicable:


 


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(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying
that such Lender is exempt from U.S. Federal backup withholding tax;




(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax
treaty to which the United States is a party (1) with respect to payments of
interest under any Credit Document, IRS Form W-8BEN establishing an exemption
from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest”
article of such tax treaty and (2) with respect to any other applicable payments
under this Agreement, IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or
“other income” article of such tax treaty;




(C) in the case of a Non-U.S. Lender for whom payments under this Agreement
constitute income that is effectively connected with such Lender’s conduct of a
trade or business in the United States, IRS Form W-8ECI;




(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN
and (2) a certificate substantially in the form of Exhibit F (a “U.S. Tax
Certificate”) to the effect that such Lender is not (a) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of
Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
and (d) conducting a trade or business in the United States with which the
relevant interest payments are effectively connected;




(E) in the case of a Non-U.S. Lender that is not the beneficial owner of
payments made under this Agreement (including a partnership) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A),
(B), (C), (D) and (F) of this paragraph (f)(ii) that would be required of each
such beneficial owner or partner of such partnership if such beneficial owner or
partner were a Lender; provided, however, that if the Lender is a partnership
and one or more of its partners are claiming the exemption for portfolio
interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax
Certificate on behalf of such partners; or




(F) any other form prescribed by law as a basis for claiming exemption
from, or a reduction of, U.S. Federal withholding Tax together with such
supplementary documentation necessary to enable Borrower or Administrative Agent
to determine the amount of Tax (if any) required by law to be withheld.


 


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(iii) If a payment made to a Lender under any Credit Document would be subject to
U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with
the applicable reporting requirements of FATCA (including those contained in Section
1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Withholding Agent, at the time or times prescribed by law and at such time or times
reasonably requested by the Withholding Agent, such documentation prescribed by applicable
law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Withholding Agent as may be necessary for the
Withholding Agent to comply with its obligations under FATCA, to determine that such
Lender has or has not complied with such Lender’s obligations under FATCA and, as
necessary, to determine the amount to deduct and withhold from such payment. Solely for
purposes of this Section 2.20(f)(iii), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement.



(g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in
good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant
to this Section 2.20 (including additional amounts paid pursuant to this Section 2.20), it shall
pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid such indemnified party pursuant to the previous sentence (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event such
indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding
anything herein to the contrary in this Section 2.20(g), in no event will any indemnified party be
required to pay any amount to any indemnifying party pursuant to this Section 2.20(g) if such
payment would place such indemnified party in a less favorable position (on a net after-Tax basis)
than such indemnified party would have been in if the indemnification payments or additional
amounts giving rise to such refund had never been paid. This Section 2.20(g).shall not be
construed to require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the indemnifying party or any
other Person.



(h) Issuing Bank. For purposes of Section 2.20(e) and (f), the term “Lender” includes any
Issuing Bank.



Section 2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender :



(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.11(a);



(b) the Revolving Exposure of such Defaulting Lender shall not be included in determining
whether the Requisite Lenders have taken or may take any action hereunder (including any consent to
any amendment, waiver or other modification pursuant to
Section 11.05); provided, that this clause (b) shall not apply to the vote of a Defaulting
Lender in the case of an amendment, waiver or other modification requiring the consent of such
Lender or each Lender affected thereby which affects such Defaulting Lender differently than other
affected Lenders;


 


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(c) if any Swing Line Exposure or Letter of Credit Usage exists at the time such Lender
becomes a Defaulting Lender then:




(i) all or any part of the Swing Line Exposure and Letter of Credit Usage of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with
their respective Applicable Percentages but only to the extent that (x) the sum of all
non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swing Line
Exposure and Letter of Credit Usage does not exceed the total of all non-Defaulting
Lenders’ Commitments and (y) the conditions set forth in Section 3.02 are satisfied at
such time;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, Borrower shall within one Business Day following notice by Administrative
Agent (x) first, prepay such Swing Line Exposure and (y) second, cash collateralize for
the benefit of the Issuing Bank only Borrower’s obligations corresponding to such
Defaulting Lender’s Letter of Credit Usage (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures set forth in
Section 2.04(i) for so long as such Letter of Credit Usage is outstanding;




(iii) if Borrower cash collateralizes any portion of such Defaulting Lender’s Letter
of Credit Usage pursuant to clause (ii) above, Borrower shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 2.11(a)(ii) with respect to such
Defaulting Lender’s Letter of Credit Usage during the period such Defaulting Lender’s
Letter of Credit Usage is cash collateralized;




(iv) if the Letter of Credit Usage of the non-Defaulting Lenders is reallocated
pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section
2.11(a)(i) and Section 2.11(a)(ii) shall be adjusted in accordance with such
non-Defaulting Lenders’ Applicable Percentages; and




(v) if all or any portion of such Defaulting Lender’s Letter of Credit Usage is
neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Issuing Bank or any other Lender
hereunder, all letter of credit fees payable under Section 2.11(a)(ii) with respect to
such Defaulting Lender’s Letter of Credit Usage shall be payable to the Issuing Bank until
and to the extent that such Letter of Credit Usage is reallocated and/or cash
collateralized; and



(d) so long as such Lender is a Defaulting Lender, the Swing Line Lender shall not be required
to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s
then outstanding Letter of Credit Usage will be 100% covered by the Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by Borrower in accordance with
Section 2.21(c), and participating interests in any newly made Swing Line Loan or any newly issued
or
increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein).


 


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If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swing Line Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swing Line
Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swing Line Lender or the Issuing Bank,
as the case may be, shall have entered into arrangements with Borrower or such Lender, reasonably
satisfactory to the Swing Line Lender or the Issuing Bank, as the case may be, to defease any risk
to it in respect of such Lender hereunder.



In the event that Administrative Agent, Borrower, the Swing Line Lender and the Issuing Bank
each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to
be a Defaulting Lender, then the Swing Line Exposure and Letter of Credit Usage of the Lenders
shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such
Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans)
as Administrative Agent shall determine may be necessary in order for such Lender to hold such
Loans in accordance with its Applicable Percentage.



Section 2.22. Obligation to Mitigate; Removal or Replacement of a Lender.



(a) If any Lender (which term shall include Issuing Bank for purposes of this Section 2.22(a))
requests compensation under Section 2.18, Section 2.19, or if Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.20, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections
2.18, 2.19 or 2.20, as the case may be, and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment. A certificate as to the amount of any such expenses payable by Borrower
pursuant to this Section 2.22 (setting forth in reasonable detail the basis for such amount)
submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive
absent manifest error.



(b) If any Lender (which term shall include Issuing Banks for purposes of this Section 2.22(b)
requests compensation under Section 2.19, or if Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20,
or if any Lender becomes a Defaulting Lender, then Borrower may, at its sole expense and effort,
upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in Section 11.06),
all its interests, rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such



 


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assignment); provided that (i) Borrower shall have received the prior written consent of
Administrative Agent (and if a Revolving Commitment is being assigned, Issuing Bank and the Swing
Line Lender), which consent shall not unreasonably be withheld or delayed, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its Loans and
participations in drawings under Letters of Credit and Swing Line Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.19 or payments required to be made pursuant to Section 2.20, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling Borrower to require such assignment and delegation cease to apply.



Section 2.23. Incremental Facilities.



(a) Borrower may by written notice to Administrative Agent elect to request (A) prior to the
Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any
such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more
new term loan commitments (the “New Term Loan Commitments”), by an amount not in excess of
$200,000,000 in the aggregate and not less than $10,000,000 individually (or such lesser amount
which shall be approved by Administrative Agent. Each such notice shall specify (A) the date
(each, an “Increased Amount Date”) on which Borrower proposes that the New Revolving Loan
Commitments or New Term Loan Commitments, as applicable, shall be effective, and (B) the identity
of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or
“New Term Loan Lender”, as applicable) to whom Borrower proposes any portion of such New Revolving
Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such
allocations; provided that any Lender approached to provide all or a portion of the New Revolving
Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to
provide a New Revolving Loan Commitment or a New Term Loan Commitment. Such New Revolving Loan
Commitments or New Term Loan Commitments shall become effective, as of such Increased Amount Date;
provided that (1) no Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable;
(2) Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the
covenants set forth in Article 7 as of the last day of the most recently ended Fiscal Quarter after
giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable;
(3) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be
effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the New
Revolving Loan Lender or New Term Loan Lender, as applicable, and Administrative Agent, and each of
which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender
shall be subject to the requirements set forth in Section 2.20(c); and (4) (i) the Weighted Average
Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average
Life Maturity of the Terms Loans, (ii) the applicable New Term Loan Maturity Date of each Series
shall be no shorter than the Term Loan Maturity Date and (iii) the Weighted Average Yield and any
amortization schedule applicable to the New Term



 


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Loans of each Series shall be determined by Borrower and the applicable new Lenders and shall
be set forth in each applicable Joinder Agreement; provided however that the Weighted Average Yield
applicable to the New Term Loans shall not be greater than the applicable Weighted Average Yield
payable pursuant to the terms of this Agreement as amended through the date of such calculation
with respect to the Term Loans plus 0.50% per annum unless the interest rate with respect to the
Term Loan is increased so as to cause the then applicable Weighted Average Yield under this
Agreement on the Term Loans to equal the Weighted Average Yield then applicable to the New Term
Loans minus 0.50%. Each Joinder Agreement with a New Revolving Loan Lender not previously a Lender
with a Revolving Commitment hereunder, shall be subject to the consent (not to be unreasonably
withheld or delayed) of Issuing Bank and the Swing Line Lender. Any New Term Loans made on an
Increased Amount Date shall be designated a separate Series of New Term Loans for all purposes of
this Agreement.



(b) On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject
to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving
Exposure shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan
Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof
(together with accrued interest), such interests in the Revolving Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and
New Revolving Loan Lenders ratably in accordance with their Revolving Loan Commitments after giving
effect to the addition of such New Revolving Loan Commitments to the Revolving Loan Commitments,
(b) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Loan Commitment
and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a
Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New
Revolving Loan Commitment and all matters relating thereto.



(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term
Loan Lender of any Series shall make a Loan to Borrower (a “New Term Loan”) in an amount equal to
its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall
become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New
Term Loans of such Series made pursuant thereto.



(d) Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of
each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the
New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders
of such Series, as applicable, and (z) in the case of each notice to any Lender with Revolving
Exposure, the respective interests in such Lender’s Revolving Loans, in each case subject to the
assignments contemplated by this Section.


 


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(e) Any New Revolving Loan Commitments shall be on terms and pursuant to documentation
applicable to the Revolving Commitments (including the Revolving Commitment Termination Date) and
any New Term Commitments and New Term Loans shall be on terms and pursuant to the applicable
Joinder Agreement, provided that, to the
extent such terms are not consistent with the Term Commitments and Term Loans (except as
provided in clause (4) of Section 2.23(a)), such terms shall be reasonably satisfactory to
Administrative Agent. The proceeds of each Incremental Facility shall be used for general
corporate purposes of Borrower and its Restricted Subsidiaries, including Permitted Acquisitions
and Restricted Junior Payments.



(f) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of Administrative Agent to effect the provision of this Section 2.23.



Section 2.24. Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Borrower may give
Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be; provided each such
notice shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the close of business on the date that the telephonic notice is
given. In the event of a discrepancy between the telephone notice and the written Notice, the
written Notice shall govern. In the case of any Notice that is irrevocable once given, if Borrower
provides telephonic notice in lieu thereof, such telephone notice shall also be irrevocable once
given. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting
upon any telephonic notice referred to above that Administrative Agent believes in good faith to
have been given by a duly authorized officer or other person authorized on behalf of Borrower or
for otherwise acting in good faith.



ARTICLE 3

Conditions Precedent




Section 3.01 . Closing Date. The obligation of each Lender or Issuing Bank, as applicable,
to make a Credit Extension on the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 11.05, of the following conditions on or before the Closing Date, provided
that the Closing Date shall occur, if at all, only if such conditions are satisfied not later than
October 19, 2011:



(a) Credit Documents. Administrative Agent and Arranger shall have received executed
counterparts of each Credit Document from each applicable Credit Party.



(b) Organizational Documents; Incumbency. Administrative Agent and Arranger shall have
received, in respect of each Credit Party, (i) each Organizational Document of such Credit Party,
and, to the extent applicable, certified as of the Closing Date or a recent date prior thereto by
the appropriate Governmental Authority; (ii) signature and incumbency certificates of the officers
of such Credit Party; (iii) resolutions of the Board of Directors or similar governing body of such
Credit Party approving and authorizing the execution, delivery and performance of this Agreement
and the other Credit Documents and the Tender Offer Documents to which it is a party or by which it
or its assets may be bound as of the Closing Date, certified as of the Closing Date by its
secretary or an assistant secretary as being in full force and effect without modification or
amendment; and (iv) a good standing certificate from the applicable Governmental Authority of
such Credit Party’s jurisdiction of incorporation, organization or formation, each dated the
Closing Date or a recent date prior thereto.


 


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(c) Consummation of Tender Offer.




(i) (A) All conditions to the initial settlement of the Tender Offer set forth in the
Tender Offer Documents shall have been satisfied or the fulfillment of any such conditions
shall have been waived and (B) the amendments to the Senior Notes Documents shall have
become effective in accordance with the terms of the Senior Notes Consent.




(ii) Administrative Agent and the Arrangers shall each have received a fully executed
or conformed copy of each Tender Offer Document and any documents executed in connection
therewith. Each Tender Offer Document shall be in full force and effect, and shall
include terms and provisions reasonably satisfactory to Administrative Agent.



(d) Governmental Approvals and Consents. Each Credit Party shall have obtained all
Governmental Approvals and all consents of other Persons, in each case that are necessary in
connection with the transactions contemplated by the Credit Documents and the Tender Offer
Documents and each of the foregoing shall be in full force and effect.



(e) Personal Property Collateral. Each Credit Party shall have delivered to Collateral Agent:




(i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party
of their obligations under the Security Agreement, the Securities Pledge Agreement and the
other Collateral Documents (including their obligations to execute and deliver UCC
financing statements;




(ii) fully executed counterparts of the Accession Agreement and amendments to or
assignments of the Collateral Agency Agreement, the Security Agreement and the Securities
Pledge Agreement and any intellectual property security agreements appointing JPMorgan
Chase Bank, N.A., as Collateral Agent;




(iii) a completed Collateral Questionnaire dated the Closing Date and executed by an
Authorized Officer of each Credit Party, together with all attachments contemplated
thereby; and




(iv) fully executed IP Security Agreement Supplements (if any), in proper form for
filing or recording in the United States.



(f) Financial Statements; Projections. Administrative Agent and the Arrangers shall have
received from Borrower (i) the Historical Financial Statements, (ii) pro forma consolidated and
consolidating balance sheets of Borrower and its Subsidiaries as at the Closing Date, and
reflecting the consummation of the Tender Offer, the related financings and the other transactions
contemplated by the Credit Documents to occur on or prior to the Closing Date, which pro forma
financial statements shall be in form and
substance reasonably satisfactory to Administrative Agent and Arranger, and (iii) the
Projections.


 


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(g) Evidence of Insurance. Collateral Agent shall have received a certificate from the
applicable Credit Party’s insurance broker or other evidence reasonably satisfactory to it that all
insurance required to be maintained pursuant to Section 5.05 is in full force and effect, together
with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional
insured and loss payee thereunder to the extent required under Section 5.05.



(h) Opinions of Counsel to Credit Parties. Agents and Lenders and their respective counsel
shall have received originally executed copies of the favorable written opinions of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for Credit Parties as to such matters as Administrative Agent or
Arranger may reasonably request, dated as of the Closing Date and otherwise in form and substance
reasonably satisfactory to Administrative Agent and Arranger (and each Credit Party hereby
instructs such counsel to deliver such opinions to Agents and Lenders).



(i) Fees. Borrower shall have paid to each Agent and the Collateral Agent the fees payable on
or before the Closing Date referred to in Section 2.11(d) and (e) and all expenses payable pursuant
to Section 11.02 which have accrued to the Closing Date.



(j) Solvency Certificate. On the Closing Date, Administrative Agent and Arranger shall have
received a Solvency Certificate in form, scope and substance reasonably satisfactory to
Administrative Agent and Arranger, and demonstrating that the Credit Parties, on a consolidated
basis, are and will be Solvent.



(k) Closing Date Certificate. Borrower shall have delivered to Administrative Agent and
Arranger an executed Closing Date Certificate, together with all attachments thereto.



(l) Credit Rating. Borrower shall have been assigned a corporate family rating from Moody’s,
a corporate credit rating from S&P and the Term Loans shall have been assigned a credit rating from
each of Moody’s and S&P, in each case after using commercially reasonable efforts.



(m) No Litigation. There shall not exist any action, suit, investigation, litigation,
proceeding, hearing or other legal or regulatory developments, pending or, to the knowledge of
Borrower, threatened in any court or before any arbitrator or Governmental Authority that, singly
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



(n) Know Your Customer. At least 5 days prior to the Closing Date, the Lenders shall have
received all documentation and other information reasonably requested by any Lender at least 10
days prior to the Closing Date that is required by bank regulatory authorities under applicable
“know-your-customer” and anti-money laundering rules and regulations, including the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act (Title III of Pub. L. 107-56) (the “PATRIOT Act”).


 


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Section 3.02. Conditions to Each Credit Extension. The obligation of each Lender to make
any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Closing
Date, are subject to the satisfaction, or waiver in accordance with Section 11.05, of the following
conditions precedent:




(i) Administrative Agent shall have received a fully executed and delivered Funding
Notice or Issuance Notice, as the case may be;




(ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




(iii) as of such Credit Date, the representations and warranties contained herein and
in the other Credit Documents shall be true and correct in all material respects on and as
of that Credit Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date; provided that, in each case, such
materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof;




(iv) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default; and




(v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Issuance Notice.



ARTICLE 4

Representations and Warranties




In order to induce Agents, Lenders and Issuing Bank to enter into this Agreement and to make
each Credit Extension to be made thereby, each Credit Party represents and warrants that:



Section 4.01 . Organization; Requisite Power and Authority; Qualification. Each of Borrower
and its Restricted Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization as identified in Schedule 4.01, (ii) has all requisite
power and authority to own and operate its properties, to carry on its business as now conducted
and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (iii) is qualified to do business and in good
standing in every jurisdiction where its assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions where the failure to be so qualified or in good
standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.


 


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Section 4.02 . Equity Interests and Ownership. The Equity Interests of each of Borrower and
its Restricted Subsidiaries has been duly authorized and validly issued and
is fully paid and non assessable. Except as set forth on Schedule 4.02, as of the date
hereof, there is no existing option, warrant, call, right, commitment or other agreement to which
any Restricted Subsidiary of Borrower is a party requiring, and there is no membership interest or
other Equity Interests of any Restricted Subsidiary of Borrower outstanding which upon conversion
or exchange would require, the issuance by such Restricted Subsidiary of any additional membership
interests or other Equity Interests of such Restricted Subsidiary or other Securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest
or other Equity Interests of such Restricted Subsidiary. Schedule 4.02 correctly sets forth the
ownership interest of each of Borrower’s Subsidiaries in its respective Subsidiaries as of the
Closing Date.



Section 4.03. Due Authorization. The execution, delivery and performance of the Credit
Documents have been duly authorized by all necessary action on the part of each Credit Party that
is a party thereto.



Section 4.04. No Conflict. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not (i) violate (1) any provision of any material law or any
material governmental rule or regulation applicable to Borrower or any of its Restricted
Subsidiaries, (2) any of the Organizational Documents of Borrower or any of its Restricted
Subsidiaries, or (3) any material order, judgment or decree of any court or other agency of
government binding on Borrower or any of its Restricted Subsidiaries; (ii) conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default under any material
Contractual Obligation of Borrower or any of its Restricted Subsidiaries; (iii) result in or
require the creation or imposition of any Lien upon any of the properties or assets of Borrower or
any of its Restricted Subsidiaries (other than any Liens created under any of the Credit Documents
in favor of Collateral Agent, on behalf of the Secured Parties); or (iv) require any approval of
stockholders, members or partners or any approval or consent of any Person under any material
Contractual Obligation of Borrower or any of its Restricted Subsidiaries, except for such approvals
or consents which will be obtained on or before the Closing Date and disclosed in writing to
Lenders.



Section 4.05. Governmental Consents. The execution, delivery and performance by Credit
Parties of the Credit Documents to which they are parties and the consummation of the transactions
contemplated by the Credit Documents do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any Governmental Authority, except for
(i) filings and recordings with respect to the Collateral to be made, or otherwise delivered to
Collateral Agent for filing and/or recordation, as of the Closing Date and (ii) those
registrations, consents, approvals, notices or actions the failure of which to obtain or make could
not, either individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



Section 4.06. Binding Obligation. Each Credit Document has been duly executed and delivered
by each Credit Party that is a party thereto and is the legally valid and binding obligation of
such Credit Party, enforceable against such Credit Party in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights generally or by equitable principles relating to
enforceability.


 


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Section 4.07. Historical Financial Statements. The Historical Financial Statements were
prepared in conformity with GAAP and fairly present, in all material respects, the financial
position, on a consolidated basis, of the Persons described in such financial statements as at the
respective dates thereof and the results of operations and cash flows, on a consolidated basis, of
the entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year end adjustments.
As of the Closing Date, neither Borrower nor any of its Restricted Subsidiaries has any contingent
liability or liability for Taxes, long term lease or unusual forward or long term commitment that
is not reflected in the Historical Financial Statements or the notes thereto and which in any such
case is material in relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Borrower and any of its Restricted Subsidiaries taken as a whole.



Section 4.08. Projections. On and as of the Closing Date, the projections of Borrower and
its Restricted Subsidiaries for the period of Fiscal Year 2011 through and including Fiscal Year
2015 (the “Projections”) are based on good faith estimates and assumptions believed by it to be
reasonable at the time so furnished; provided, the Projections are not to be viewed as facts and
that actual results during the period or periods covered by the Projections may differ from such
Projections and that the differences may be material.



Section 4.09. No Material Adverse Effect. Since December 31, 2010, no event, circumstance
or change has occurred that has caused or evidences, or could reasonably be expected to result in,
either in any case or in the aggregate, a Material Adverse Effect.



Section 4.10. Adverse Proceedings, Etc. There are no Adverse Proceedings, individually or
in the aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither
Borrower nor any of its Restricted Subsidiaries (i) is in violation of any applicable laws
(including Environmental Laws) that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, or (ii) is subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



Section 4.11. Payments of Taxes. Except as otherwise permitted under Section 5.03, all Tax
returns and reports of Borrower and its Restricted Subsidiaries required to be filed by any of them
have been timely filed, and all Taxes shown on such tax returns to be due and payable and all other
Taxes of Borrower and its Restricted Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when due and payable
except, in each case, Taxes that are being contested in good faith by appropriate proceedings and
for which adequate reserves have been set aside in accordance with GAAP and except, in each case,
to the extent that the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Neither Borrower nor any of its Restricted
Subsidiaries has knowledge of any proposed Tax assessment against Borrower or any of its Restricted
Subsidiaries which is not being actively contested by Borrower or such Restricted Subsidiary in
good faith and by appropriate proceedings; provided, such
reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.


 


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Section 4.12. Properties.



(a) Title. Each of Borrower and its Restricted Subsidiaries has (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or tangible personal property), (iii) to the knowledge
of Borrower, valid licensed rights in (in the case of licensed interests in intellectual property)
and (iv) good title to (in the case of all other tangible personal property), all of their
respective properties and assets, in each case except for defects in title that do not materially
interfere with its ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and where the failure to have such title,
interest, or right could not reasonably be expected to have a Material Adverse Effect. Except as
permitted by this Agreement, all such properties and assets are free and clear of Liens, other than
(i) Permitted Liens, (ii) Liens arising by operation of law and (iii) minor defects in title that
do not materially interfere with the ability of Borrower and its Restricted Subsidiaries to conduct
their businesses.



(b) Real Estate. As of the Closing Date, Schedule 4.12 contains a true, accurate and complete
list of all Real Estate Assets.



Section 4.13. Environmental Matters. Except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of Borrower or any Restricted Subsidiary (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has, to the knowledge of Borrower, become subject to any
Environmental Claim, (iii) has received written notice of any Environmental Claim or (iv) has, to
the knowledge of Borrower, any basis to reasonably expect that Borrower or any Restricted
Subsidiary will become subject to any Environmental Claim.



Section 4.14. No Defaults. Neither Borrower nor any of its Restricted Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its material Contractual Obligations, and no condition exists which,
with the giving of notice or the lapse of time or both, could constitute such a default, except
where the consequences, direct or indirect, of such default or defaults, if any, could not
reasonably be expected to have a Material Adverse Effect.



Section 4.15. Material Contracts. Schedule 4.15 contains a true, correct and complete list
of all the Material Contracts in effect on the Closing Date, and except as described thereon, all
such Material Contracts are in full force and effect and no defaults currently exist thereunder as
of the Closing Date.



Section 4.16. Governmental Regulation.



(a) All Governmental Approvals, other than the filings and recordations contemplated by the
Collateral Documents, required to be obtained by Borrower or any of its Restricted Subsidiaries for
the DigitalGlobe Business have been duly obtained, are
validly issued, are in full force and effect, are held in the name or extend to the benefit of
Borrower or one of its Restricted Subsidiaries and are free from any conditions or requirements
that Borrower could not reasonably be expected to satisfy on or prior to the date such Governmental
Approval is required for the DigitalGlobe Business, except where the failure to have so obtained,
issued or to be in force and effect, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.


 


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(b) To the knowledge of Borrower, all Governmental Approvals that have been obtained by any
Person other than Borrower or any of its Restricted Subsidiaries for the DigitalGlobe Business have
been duly obtained, are validly issued, are in full force and effect, are held in the name or
extend to the benefit of the relevant Person and are free from any conditions or requirements that
Borrower could not reasonably expect such other Person to satisfy in the ordinary course of the
DigitalGlobe Business, except where the failure to have so obtained, issued or to be in force and
effect, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.



(c) Except as provided in Schedule 4.16, the DigitalGlobe Business in all material respects
conforms to and complies with all applicable covenants, conditions, restrictions and reservations
in all Governmental Approvals required for the DigitalGlobe Business and all Regulations applicable
thereto, except where the failure to conform or comply, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



(d) Neither Borrower nor any of its Restricted Subsidiaries is subject to regulation under the
Investment Company Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable. Neither Borrower nor any of its Restricted Subsidiaries is a
“registered investment company” or a company “controlled” by a “registered investment company” or a
“principal underwriter” of a “registered investment company” as such terms are defined in the
Investment Company Act of 1940.



Section 4.17. Employee Matters. Neither Borrower nor any of its Restricted Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against Borrower or any of its
Restricted Subsidiaries, or to the knowledge of Borrower, threatened against it before the National
Labor Relations Board and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending against Borrower or any of its Restricted
Subsidiaries or to the knowledge of Borrower, threatened against it, (ii) no strike or work
stoppage in existence or threatened involving Borrower or any of its Restricted Subsidiaries, and
(iii) to the knowledge of Borrower, no union representation question existing with respect to the
employees of Borrower or any of its Restricted Subsidiaries and, to the knowledge of Borrower, no
union organization activity that is taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.


 


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Section 4.18. Employee Benefit Plans. Borrower, each of its Restricted Subsidiaries and
each of their respective ERISA Affiliates are in material compliance with all applicable provisions
and requirements of ERISA and the Internal Revenue Code and the regulations and published
interpretations thereunder with respect to each
Employee Benefit Plan, and have administered and operated each Employee Benefit Plan
materially in accordance with its terms. Each Employee Benefit Plan which is intended to qualify
under Section 401(a) of the Internal Revenue Code has received a favorable determination letter
from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and,
to the knowledge of Borrower, nothing has occurred subsequent to the issuance of such determination
letter which would cause such Employee Benefit Plan to lose its qualified status. No liability to
the PBGC (other than required premium payments), the Internal Revenue Service, any Employee Benefit
Plan or any trust established under Title IV of ERISA has been or reasonably is expected to be
incurred by Borrower, any of its Restricted Subsidiaries or any of their ERISA Affiliates. No
ERISA Event has occurred or is reasonably expected to occur. The present value of the aggregate
benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Borrower,
any of its Restricted Subsidiaries or any of their ERISA Affiliates (determined as of the end of
the most recent plan year on the basis of the actuarial assumptions specified for funding purposes
in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current
value of the assets of such Pension Plan. As of the most recent valuation date for each
Multiemployer Plan for which the actuarial report is available, the potential liability of
Borrower, its Restricted Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA is zero. Borrower, each of its
Restricted Subsidiaries and each of their ERISA Affiliates have complied (if and to the extent
applicable) with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan
and are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan.



Section 4.19. Certain Fees. No broker’s or finder’s fee or commission will be payable with
respect to the transactions contemplated by the Related Agreements, except as payable to Agents and
Lenders.



Section 4.20. Solvency. Immediately after the transactions to occur on the Closing Date and
immediately following the making of each Loan and after giving effect to the application of the
proceeds of each Loan, the Credit Parties, taken as a whole, will be Solvent.



Section 4.21. Tender Offer Documents.



(a) Delivery. Borrower has delivered to Administrative Agent complete and correct copies of
(i) each Tender Offer Document and of all exhibits and schedules thereto as of the date hereof and
(ii) copies of any material amendment, restatement, supplement or other modification to or waiver
of each Tender Offer Document entered into after the date hereof.



(b) Conditions Precedent. On the Closing Date, (i) all of the conditions to effecting or
consummating the initial settlement of the Tender Offer set forth in the Tender Offer Documents
have been duly satisfied or waived, and (ii) the initial settlement of the Tender Offer has been
consummated in accordance with the Tender Offer Documents and all applicable laws.


 


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Section 4.22. Compliance with Statutes, Etc. Each of Borrower and its Restricted
Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its
business and the ownership of its property (including compliance with all applicable Environmental
Laws with respect to any Real Estate Asset or governing its business and the requirements of any
permits issued under such Environmental Laws with respect to any such Real Estate Asset or the
operations of Borrower or any of its Restricted Subsidiaries), except such non compliance that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.



Section 4.23. Disclosure. No representation or warranty of any Credit Party contained in
any Credit Document or in any other documents, certificates or written statements furnished to any
Agent or Lender by or on behalf of Borrower or any of its Restricted Subsidiaries for use in
connection with the transactions contemplated hereby, when furnished and taken as a whole, contains
any untrue statement of a material fact or omits to state a material fact (known to Borrower, in
the case of any document not furnished by either of them) necessary in order to make the statements
contained herein or therein not materially misleading in light of the circumstances in which the
same were made; provided that any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable
at the time made, it being recognized by Lenders that such projections as to future events are not
to be viewed as facts and that actual results during the period or periods covered by any such
projections may differ materially from the projected results.



Section 4.24. PATRIOT Act. To the extent applicable, each Credit Party is in compliance, in
all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the Untied States Treasury Department (31 C.F.R., Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the
PATRIOT Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.



Section 4.25. Sanctioned Persons. None of Borrower or any Subsidiary nor, to the knowledge
of Borrower, any director, officer, agent, employee or Affiliate of Borrower or any Subsidiary is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and Borrower will not directly or indirectly use the proceeds of
the Loans or the Letters of Credit or otherwise make available such proceeds to any Person, for the
purpose of financing the activities of any Person currently subject to any U.S. sanctions
administered by OFAC.



Section 4.26. Federal Reserve Regulations.



(a) None of Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of buying or carrying
Margin Stock.


 


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(b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of the Board of
Governors, including Regulation T, U or X.



ARTICLE 5

Affirmative Covenants




Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations (other than contingent indemnification obligations for which no
claim has been made) and cancellation or expiration or cash collateralization of all Letters of
Credit on terms reasonably satisfactory to the Issuing Bank, each Credit Party shall perform, and
shall cause each of its Restricted Subsidiaries to perform, all covenants in this Article 5.



Section 5.01. Financial Statements and Other Reports. Borrower will deliver to
Administrative Agent for delivery to the Lenders:



(a) Quarterly Financial Statements. As soon as available, and in any event within 45 days
after the end of each Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter in
which the Closing Date occurs, the consolidated balance sheets of Borrower and its Subsidiaries as
at the end of such Fiscal Quarter and the related consolidated statements of income and cash flows
of Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the previous Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto;



(b) Annual Financial Statements. As soon as available, and in any event within 90 days after
the end of each Fiscal Year, commencing with the Fiscal Year in which the Closing Date occurs, (i)
the consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the end of
such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash
flows of Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year, in reasonable detail,
together with a Financial Officer Certification and a Narrative Report with respect thereto; and
(ii) with respect to such consolidated financial statements a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national
standing selected by Borrower, and reasonably satisfactory to Administrative Agent (which report
and/or the accompanying financial statements shall be unqualified as to going concern and scope of
audit, and shall state that such consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed
in such financial statements) and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally accepted auditing
standards) together with a certificate by such independent certified
public accountants stating whether they obtained knowledge during the course of their
examination of such financial statements that Borrower failed to comply with Sections 7.01 and 7.02
of Article 7 (which certificate may be limited to the extent required by accounting rules or
guidelines);


 


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(c) Compliance Certificate; Reserved Funds Report. Together with each delivery of financial
statements of Borrower and its Subsidiaries pursuant to Sections 5.01(a) and 5.01(b), a duly
executed and completed Compliance Certificate and a report of a Financial Officer of Borrower
specifying all amounts that have been deposited in or released from the Reserved Funds Account
during the period specified in the Compliance Certificate;



(d) Statements of Reconciliation after Change in Accounting Principles. If, as a result of
any change in accounting principles and policies from those used in the preparation of the
Historical Financial Statements, the consolidated financial statements of Borrower and its
Subsidiaries delivered pursuant to Section 5.01(a) or 5.01(b) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance reasonably
satisfactory to Administrative Agent;



(e) Notice of Default. Promptly upon any officer of Borrower obtaining knowledge (i) of any
condition or event that constitutes a Default or an Event of Default or that notice has been given
to Borrower with respect thereto; (ii) that any Person has given any notice to Borrower or any of
its Restricted Subsidiaries or taken any other action with respect to any event or condition set
forth in Section 9.01(e); or (iii) of the occurrence of any event or change that has caused or
could reasonably be expected to cause, either individually or in the aggregate, a Material Adverse
Effect, a certificate of an Authorized Officer specifying the nature and period of existence of
such condition, event or change, or specifying the notice given and action taken by any such Person
and the nature of such claimed Event of Default, Default, event or condition, and what action
Borrower has taken, is taking and proposes to take with respect thereto;



(f) Notice of Litigation. Promptly upon any officer of Borrower obtaining knowledge of (i)
any Adverse Proceeding not previously disclosed in writing by Borrower to Lenders, or (ii) any
development in any Adverse Proceeding that, in the case of either clause (i) or (ii), if adversely
determined could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Borrower to enable Lenders and their counsel to evaluate such
matters;



(g) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming occurrence of
any ERISA Event that has or is reasonably expected to result in liability to Borrower in excess of
$35,000,000, a written notice specifying the nature thereof, what action Borrower, any of its
Restricted Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with
reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series)
filed by Borrower, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices
received by Borrower, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning any such ERISA Event; and (3) copies of
such other documents or governmental reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;


 


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(h) Insurance Report. Upon the annual renewal of the applicable insurance policy, a
certificate from Borrower’s insurance broker(s) in form and substance reasonably satisfactory to
Administrative Agent outlining all material insurance coverage under such policy maintained as of
the date of such certificate by Borrower and its Restricted Subsidiaries;



(i) Information Regarding Collateral. Borrower will furnish to Collateral Agent all
information regarding Collateral required pursuant to the Collateral Documents;



(j) Annual Collateral Verification. Each year, at the time of delivery of annual financial
statements with respect to the preceding Fiscal Year pursuant to Section 5.01(b), Borrower shall
deliver to Collateral Agent a certificate of its Authorized Officer (i) either confirming that
there has been no change in such information since the date of the Collateral Questionnaire
delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this
Section and/or identifying such changes and (ii) certifying that, to its knowledge, all Uniform
Commercial Code financing statements (including fixtures filings, as applicable) and all
supplemental intellectual property security agreements or other appropriate filings, recordings or
registrations, have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (i) above (or in such Collateral
Questionnaire) to the extent necessary to effect, protect and perfect the security interests under
the Collateral Documents for a period of not less than 18 months after the date of such certificate
(except as noted therein with respect to any continuation statements to be filed within such
period);



(k) Other Information. (i) Promptly upon their becoming available, copies of (A) all
financial statements, reports, notices and proxy statements sent or made available generally by
Borrower to its security holders acting in such capacity or by any Restricted Subsidiary of
Borrower to its security holders other than Borrower or another Restricted Subsidiary of Borrower
and (B) all regular and periodic reports and all registration statements and prospectuses, if any,
filed by Borrower or any of its Restricted Subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any other Governmental Authority and (ii) such other
information and data with respect to Borrower or any of its Restricted Subsidiaries as from time to
time may be reasonably requested by Administrative Agent or any Lender; and



(l) Certification of Public Information. Borrower and each Lender acknowledge that certain of
the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to
this Section 5.01 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or
another relevant website or other information platform (the “Platform”), any document or notice
that Borrower has indicated contains Non-Public Information shall not be posted on that portion of
the Platform designated for such Public Lenders. Borrower agrees to clearly designate all
information provided to Administrative Agent by or on behalf of Borrower which is
suitable to make available to Public Lenders. If Borrower has not indicated whether a
document or notice delivered pursuant to this Section 5.01 contains Non-Public Information,
Administrative Agent reserves the right to post such document or notice solely on that portion of
the Platform designated for Lenders who wish to receive material non-public information with
respect to Borrower, its Restricted Subsidiaries and their securities.


 


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Information required to be delivered pursuant to Section 5.01(a), Section 5.01(b), and Section
5.01(k) shall be deemed to have been delivered if such information, or one or more annual,
quarterly or other periodic reports containing such information, shall have been posted by
Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access
or shall be available on the website of the SEC at http://www.sec.gov.



Section 5.02 . Existence. Except as otherwise permitted under Section 6.07, each Credit
Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect its existence and all rights and franchises, licenses and permits material to its
business, except to the extent the failure to do so could not reasonably be expected to result in a
Material Adverse Effect; provided, that no Credit Party (other than Borrower with respect to
existence) or any of its Restricted Subsidiaries shall be required to preserve any such existence,
right or franchise, licenses and permits if such Person’s board of directors (or similar governing
body) shall determine that the preservation thereof is no longer desirable in the conduct of the
business of such Person, and that the loss thereof is not disadvantageous in any material respect
to such Person or to Lenders.



Section 5.03 . Payment of Taxes and Claims. Each Credit Party will, and will cause each of
its Restricted Subsidiaries to, pay all material Taxes imposed upon it or any of its properties or
assets or in respect of any of its income, businesses or franchises before any penalty or fine
accrues thereon, and all material claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, no such Tax or claim need be paid if (i) it is not more than 30 days
overdue or (ii) it is being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall
be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or
claim which has or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or
claim.



Section 5.04 . Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of Borrower
and its Restricted Subsidiaries and from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof , except where the failure to maintain such properties
could not reasonably be expected to have a Material Adverse Effect.



Section 5.05 . Insurance.


 


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(a) General Coverage. Borrower will maintain or cause to be maintained, with financially
sound and reputable insurers, such public liability insurance, third party property damage
insurance, business interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Borrower and its Restricted
Subsidiaries (other than Satellites) as may customarily be carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses, in each case in
such amounts (giving effect to self insurance), with such deductibles, covering such risks and
otherwise on such terms and conditions as shall be customary for such Persons. Without limiting
the generality of the foregoing, Borrower will maintain or cause to be maintained flood insurance
with respect to each Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable regulations of the
Board of Governors. Except as otherwise agreed by Collateral Agent, each such policy of insurance
shall (i) name Collateral Agent, on behalf of the Secured Parties, as an additional insured
thereunder as its interests may appear, (ii) in the case of each casualty insurance policy, contain
a loss payable clause or endorsement, reasonably satisfactory in form and substance to Collateral
Agent, that names Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder
and provide for at least thirty days’ prior written notice to Collateral Agent of any modification
or cancellation of such policy.



(b) Satellite Coverage.




(i) Launch and Initial Operations Insurance. Prior to the launch of any Satellite
not in orbit as of the Closing Date, Borrower shall procure, or cause to be procured, at
its own expense, launch and initial operations insurance for a period commencing no later
than the time of the launch of such Satellite and expiring thereafter, in an amount as is
reasonable and customary in the case of satellites having similar value and properties for
companies engaged in the same or similar business or having similar properties, similarly
situated, such insurance to be on terms and conditions, including customary exclusions and
having such deductibles, as are customary in the case of satellites having similar value
and properties for companies engaged in the same or similar business or having similar
properties, similarly situated.




(ii) In-Orbit Insurance. Unless the Board of Directors of Borrower shall have passed
a resolution that in-orbit insurance is not available to Borrower at such time on terms
that are commercially reasonable, Borrower shall use commercially reasonable efforts to
procure and maintain, at its own expense, in-orbit insurance for each Satellite (other
than “Quickbird”) in orbit during the commercial useful life of such Satellite, commencing
immediately upon the expiration of the applicable launch and initial operations insurance
coverage, such insurance to be in such amounts and on such terms and conditions as are
reasonable and customary in the case of satellites having similar value and properties for
companies engaged in the same or similar business or having similar properties, similarly
situated; provided that such resolution of the Board of Directors of Borrower shall be
effective for a period not in excess of 6 months.


 


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(iii) Common Terms. The Collateral Agent shall be named as additional insured and,
together with Borrower as the only loss payees, as their interests may appear, on terms
and conditions set forth in this clause (iii) in
respect of the insurance policies required to be maintained pursuant to Section
5.05(b)(i) and Section 5.05(b)(ii). All policies of insurance required to be maintained
pursuant to such Sections shall provide, either as a clause in, or an endorsement to, such
policies, that (A) there shall be no recourse against the Collateral Agent or any
Collateral for payment of premiums or other amounts with respect thereto, and (B) the
insurers will endeavor to provide the Collateral Agent with at least 15 days’ prior
written notice of reduction in coverage or amount (other than a reduction in coverage or
amount resulting from a payment thereunder), cancellation (including in the case of
nonpayment of premiums) of any policy. If Borrower fails or may fail to timely file any
proof of loss, the Collateral Agent shall have the right to submit such proof of loss in
the place of Borrower, subject to compliance by the Collateral Agent with the terms and
conditions of the applicable policy. Each such policy shall, either as a clause in, or an
endorsement to, such policies, (A) waive any right of subrogation against the Collateral
Agent (and its officers, employees, agents and insurers), (B) provide that the insurance
be primary and not excess to or contributory to any insurance or self-insurance maintained
by Borrower and (C) waive any right of the insurers to any set off or counterclaim or any
other deduction (other than non payment of premiums). All endorsements referred to in
this Section 5.05(b)(iii) with respect to insurance currently held by or on behalf of
Borrower shall be delivered no later than 180 days after the Closing Date.




(iv) Claims Under Launch and Initial Operations Policies and Under In Orbit Policies.
Borrower shall promptly and simultaneously notify the Lenders and Borrower’s insurance
broker in writing of any loss covered by any insurance referred to in Section 5.05(b)(i)
or Section 5.05(b)(ii) and, upon obtaining knowledge thereof, of any such potential loss
and shall file a proof of loss with respect thereto with the insurers (with copies thereof
sent simultaneously to the Lenders) as early as possible within the period allowed
therefor in the related insurance policy (and in any event not later than the last date on
which each proof of loss may be filed).



Section 5.06. Books and Records; Inspections. Each Credit Party will, and will cause each
of its Restricted Subsidiaries to, keep proper books of record and accounts in which full, true and
correct entries in conformity in all material respects with GAAP shall be made of all dealings and
transactions in relation to its business and activities. Each Credit Party will, and will cause
each of its Restricted Subsidiaries to, permit any authorized representatives of the Lenders
designated by Administrative Agent to visit and inspect any of the properties of any Credit Party
and any of its respective Restricted Subsidiaries, to inspect, copy and take extracts from its and
their financial and accounting records, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants, all upon reasonable notice and at
such reasonable times during normal business hours and as often as may reasonably be requested;
provided that unless an Event of Default has occurred and is continuing, such visitation and
inspection rights may only be exercised by Administrative Agent once per calendar year.



Section 5.07. Lenders’ Meetings. Borrower will, upon the request of Administrative Agent or
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders not more than once
during each Fiscal Year to be held at Borrower’s corporate offices (or at such other location as
may be agreed by Borrower and
Administrative Agent, including by telephonic conference call) at such time as may be agreed
to by Borrower and Administrative Agent.


 


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Section 5.08. Compliance with Laws. Each Credit Party will comply, and shall cause each of
its Restricted Subsidiaries and all other Persons, if any, on or occupying any Facilities to
comply, with the requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority (including all Environmental Laws), noncompliance with which could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



Section 5.09. Environmental.



(a) Environmental Disclosure. Borrower will reasonably and promptly deliver to Administrative
Agent and the Lenders reasonably detailed written notice of the occurrence of any event, or the
identification of any condition, that could reasonably be expected to result in a Environmental
Claim that could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and shall provide with reasonable promptness, documents and information from time
to time that may be reasonably requested by Administrative Agent in relation to any such events or
conditions.



(b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and shall
cause each of its Restricted Subsidiaries promptly to take, any and all actions necessary to (i)
cure any violation of applicable Environmental Laws by such Credit Party or its Restricted
Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim against
such Credit Party or any of its Restricted Subsidiaries and discharge any obligations it may have
to any Person thereunder where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.



Section 5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of
Borrower, Borrower shall promptly (i) cause such Domestic Subsidiary that is a Restricted
Subsidiary to become a Guarantor hereunder by executing and delivering to Administrative Agent a
Counterpart Agreement and a Grantor under the Security Agreement, the Securities Pledge Agreement
and the Collateral Agency Agreement by executing and delivering to Collateral Agent the joinder and
assumption agreements required thereunder respectively, and (ii) take all such actions and execute
and deliver, or cause to be executed and delivered, all such documents, instruments, agreements,
and certificates reasonably requested by Collateral Agent in the Collateral Documents. In the
event that any Person becomes a Foreign Subsidiary of Borrower, and the ownership interests of such
Foreign Subsidiary are owned by Borrower or by any Domestic Subsidiary of Borrower that is a
Restricted Subsidiary, Borrower shall take, or shall cause such Domestic Subsidiary that is a
Restricted Subsidiary to take, all of the actions referred to in the Securities Pledge Agreement
necessary to grant a perfected security interest in favor of Collateral Agent, for the benefit of
Secured Parties, under the Securities Pledge Agreement in the Equity Interests of such Foreign
Subsidiary (provided, that in no event shall more than 65% of the total outstanding Equity
Interests of any such Foreign Subsidiary be required to be so pledged). With respect to each such
Subsidiary, Borrower shall promptly send to Administrative Agent written notice setting forth with
respect to such Person (i) the date on which such Person became a Subsidiary of
Borrower, and (ii) all of the data required to be set forth in Schedules 4.01 and 4.02 with
respect to all Subsidiaries of Borrower; and such written notice shall be deemed to supplement
Schedules 4.01 and 4.02 for all purposes hereof.


 


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Section 5.11. Additional Material Real Estate Assets. In the event that any Credit Party
acquires a Material Real Estate Asset or a Real Estate Asset owned or leased on the Closing Date
becomes a Material Real Estate Asset and such interest has not otherwise been made subject to the
Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties,
then such Credit Party shall promptly take all such actions and execute and deliver, or cause to be
executed and delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates, with respect to each such Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and, subject to any filing and/or recording referred to herein, perfected security interest
in such Material Real Estate Assets.



Section 5.12. Further Assurances. At any time or from time to time upon the request of
Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and
deliver such further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effect fully the purposes of the Credit
Documents. In furtherance and not in limitation of the foregoing, each Credit Party shall take
such actions as Administrative Agent or Collateral Agent may reasonably request from time to time
to ensure that the Obligations are guarantied by the Guarantors and are secured by substantially
all of the assets of Borrower, and its Restricted Subsidiaries and all of the outstanding Equity
Interests of Borrower’s Subsidiaries (subject to limitations contained in the Credit Documents and
the Collateral Documents, including with respect to Foreign Subsidiaries).



Section 5.13. Maintenance of Ratings. Unless otherwise consented to by Agents or Requisite
Lenders, at all times, Borrower shall use commercially reasonable efforts to maintain public
ratings issued by Moody’s and S&P with respect to its senior secured debt.



Section 5.14. Designation Of Restricted And Unrestricted Subsidiaries.



(a) The Board of Directors may designate any Subsidiary, including a newly acquired or created
Subsidiary, to be an Unrestricted Subsidiary if it meets the following qualifications and the
designation would not cause an Event of Default:




(i) Such Subsidiary does not own any Equity Interest of Borrower or any Restricted
Subsidiary.




(ii) Borrower would be permitted to make an Investment at the time of the designation
in an amount equal to the aggregate Fair Market Value of all Investments of Borrower or
its Restricted Subsidiaries in such Subsidiary.




(iii) Any guarantee or other credit support thereof by Borrower or any Restricted
Subsidiary is permitted under Section 6.01 or Section 6.06.




(iv) Neither Borrower nor any Restricted Subsidiary has any obligation to subscribe
for additional Equity Interests of the Subsidiary or to
maintain or preserve its financial condition or cause it to achieve specified levels
of operating results except to the extent permitted by Section 6.01 or Section 6.06.


 


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Once so designated the Subsidiary will remain an Unrestricted Subsidiary, subject to
subsection (b).



(b)




(i) A Subsidiary previously designated an Unrestricted Subsidiary which fails to meet
the qualifications set forth in subsection (a) will be deemed to become at that time a
Restricted Subsidiary, subject to the consequences set forth in subsection (d).




(ii) The Board of Directors may designate an Unrestricted Subsidiary to be a
Restricted Subsidiary if the designation would not cause an Event of Default.



(c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,




(i) all existing Investments of Borrower and the Restricted Subsidiaries therein
(valued at Borrower’s proportional share of the Fair Market Value of its assets less
liabilities) will be deemed made at that time;




(ii) all existing Equity Interest or Indebtedness of Borrower or a Restricted
Subsidiary held by it will be deemed incurred at that time, and all Liens on property of
Borrower or a Restricted Subsidiary held by it will be deemed incurred at that time;




(iii) all existing transactions between it and Borrower or any Restricted Subsidiary
will be deemed entered into at that time;




(iv) it is released at that time from the Guaranty, if any; and




(v) it will cease to be subject to the provisions of this Agreement as a Restricted
Subsidiary.



(d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted
Subsidiary,




(i) all of its Indebtedness and Disqualified Equity Interests will be deemed incurred
at that time for purposes of Section 6.01, but will not be considered the sale or
issuance of Equity Interests for purposes of Section 6.08;




(ii) Investments therein previously charged under Section 6.06 will be credited
thereunder;




(iii) it may be required to become a Guarantor pursuant to Section 5.10; and




(iv) it will thenceforward be subject to the provisions of this Agreement as a
Restricted Subsidiary.


 


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(e) Any designation by the Board of Directors of a Subsidiary as an Unrestricted Subsidiary
will be evidenced to Administrative Agent by promptly filing with Administrative Agent a copy of
the resolutions of the Board of Directors giving effect to the designation and a certificate of an
officer of Borrower certifying that the designation complied with the foregoing provisions.



ARTICLE 6

Negative Covenants




Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations (other than contingent indemnification obligations for which no
claim has been made) and cancellation or expiration or cash collateralization of all Letters of
Credit on terms reasonably satisfactory to the Issuing Bank, such Credit Party shall perform, and
shall cause each of its Restricted Subsidiaries to perform, all covenants in this Article 6.



Section 6.01 . Indebtedness. No Credit Party shall, nor shall it permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness, except:



(a) the Obligations;



(b) DAP Debt;



(c) Indebtedness in respect of the Remaining Senior Notes;



(d) Indebtedness of any Restricted Subsidiary to Borrower or to any other Restricted
Subsidiary, or of Borrower to any Restricted Subsidiary; provided that (i) all such Indebtedness
owing by a Credit Party to any Restricted Subsidiary that is not a Guarantor shall be unsecured and
subordinated in right of payment to the payment in full of the Obligations (but only to the extent
permitted by applicable law and not giving rise to material adverse Tax consequences) and (ii) any
such Indebtedness of any Restricted Subsidiary that is not a Guarantor owing to any Credit Party
shall be subject to the limitations set forth in Section 6.06(d);



(e) Indebtedness in an aggregate principal amount not to exceed $150,000,000 that is (i)
subordinated to the Obligations on terms customary at the time for high-yield subordinated debt
securities issued in a public offering, (ii) matures after, and does not require any scheduled
amortization or other scheduled payments of principal prior to, the maturity date of the Term Loans
(it being understood that such Indebtedness may have mandatory prepayment, repurchase or
redemptions provisions satisfying the requirement of clause (iii) hereof), (iii) has terms and
conditions (other than interest rate, redemption premiums and subordination terms), taken as a
whole, that are not materially less favorable to Borrower than the terms and conditions customary
at the time for high-yield subordinated debt securities issued in a public offering and (iv) is
incurred by Borrower or a Guarantor; provided that (1) both immediately prior and after giving
effect to the incurrence thereof, (x) no Event of Default shall exist or result therefrom and (y)
Borrower will be in compliance with the financial covenants set forth in Article 7 on a
pro forma basis and provided further that a certificate of an Authorized Officer delivered to
Administrative Agent at least 4 Business Days prior to the incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto, stating that Borrower has determined
in good faith that such terms and conditions satisfy the requirements of this clause (e) shall be
conclusive evidence that such terms and conditions satisfy the foregoing requirement unless
Administrative Agent notifies Borrower within 2 days of receipt of such certificate that it
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(f) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations (including in connection with workers’ compensation) or
obligations in respect of letters of credit, bank guarantees or similar instruments related thereto
incurred in the ordinary course of business;



(g) Indebtedness in connection with Cash Management Agreements, netting services, overdraft
protections and otherwise in connection with deposit accounts;



(h) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Borrower and its Restricted Subsidiaries;



(i) guaranties by Borrower of Indebtedness of a Restricted Subsidiary or guaranties by a
Restricted Subsidiary or of Indebtedness of Borrower or another Restricted Subsidiary with respect,
in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01;
provided, that (i) if the Indebtedness that is being guarantied is unsecured and/or subordinated to
the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations and
(ii) in the case of guaranties by a Credit Party of the obligations of a Restricted Subsidiary that
is not a Guarantor, such guaranties shall be permitted by Section 6.06;




(j) Indebtedness described in Schedule 6.01 and any Permitted Refinancing thereof;



(k) Indebtedness of Borrower or its Restricted Subsidiaries with respect to Capital Leases,
sale-lease back transactions and purchase money Indebtedness in an aggregate principal amount not
to exceed at any time $100,000,000; provided that any such purchase money Indebtedness shall be
secured only by the asset acquired in connection with the incurrence of such Indebtedness;



(l) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired
by Borrower or any of its Restricted Subsidiaries, in each case after the Closing Date as the
result of a Permitted Acquisition, in an aggregate principal amount not to exceed $150,000,000 at
any one time outstanding, provided that (x) such Indebtedness existed at the time such Person
became a Subsidiary or at the time such assets were acquired and, in each case, was not created in
anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Borrower or any
Restricted Subsidiary (other than by any such person that so becomes a Subsidiary), and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above,
provided, that (1) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension, (2) the direct and contingent obligors with respect to such
Indebtedness are not changed and (3) not more than $50,000,000 aggregate principal amount of such
Indebtedness outstanding at any time (determined without regard to any Capital Leases, purchase
money Indebtedness, performance bonds, industrial revenue bonds and other similar types of
Indebtedness) shall be secured by a Lien;


 


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(m) Indebtedness under any Secured Hedge Agreement;



(n) Indebtedness arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from guaranties, surety bonds or performance bonds securing the
performance of Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in
connection with permitted Investments or permitted asset sales;



(o) Indebtedness consisting of promissory notes issued to present or former officers,
directors or employees of any Credit Party upon the death, disability, retirement or termination of
employment or service of such officer, director or employee or otherwise to finance the purchase or
redemption of Equity Interest of Borrower, to the extent the applicable Restricted Junior Payment
is permitted by Section 6.04 and in an aggregate principal amount not to exceed $2,000,000 for any
Fiscal Year;



(p) unsecured Indebtedness representing insurance premiums owing in the ordinary course of
business;



(q) Indebtedness representing deferred compensation to employees of Borrower and its
Restricted Subsidiaries permitted by the terms of this Agreement and incurred in the ordinary
course of business, in an aggregate principal amount not to exceed $2,000,000 for any Fiscal Year;



(r) other Indebtedness of Borrower and its Restricted Subsidiaries in an aggregate outstanding
principal amount not to exceed at any time $200,000,000; provided that (i) the aggregate
outstanding principal amount of such Indebtedness incurred by Restricted Subsidiaries that are not
Guarantors shall not at any time exceed $100,000,000 and (ii) immediately after giving effect to
the incurrence of any such Indebtedness under this clause (r), Borrower will be in compliance with
the financial covenants set forth in Article 7 determined on a pro forma basis; and



(s) (i) Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt,
Permitted Unsecured Refinancing Debt and Incremental Equivalent Debt and (ii) any Permitted
Refinancing thereof.



Section 6.02. Liens. No Credit Party shall, nor shall it permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or instrument in respect
of goods or accounts receivable) of Borrower or any of its Restricted Subsidiaries, whether now
owned or hereafter acquired or licensed, or any income, profits or royalties therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or other similar
notice of any Lien with respect to any such property, asset, income, profits or royalties under the
UCC of any State or under any similar recording or notice statute or under any applicable
intellectual property laws, rules or procedures, except:


 


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(a) Liens under the Collateral Documents and the Accession Agreement in favor of Collateral
Agent for the benefit of Secured Parties;



(b) Liens for Taxes if obligations with respect to such Taxes are not yet due and payable or
are being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted and adequate reserves have been made in accordance with GAAP;



(c) statutory Liens of landlords, banks (and rights of set off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of
Section 436 of the Internal Revenue Code), in each case (i) incurred in the ordinary course of
business, (ii) for amounts not yet overdue or (iii) for amounts that are overdue and that (in the
case of any such amounts overdue for a period in excess of 30 days) are being contested in good
faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested amounts;



(d) Liens incurred in the ordinary course of business in connection with (i) workers’
compensation, unemployment insurance and other types of social security, retirement benefits,
pensions or similar legislation, (ii) to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of obligations for the payment of
borrowed money or other Indebtedness) or (iii) to secure liability for insurance claims;



(e) easements, rights of way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of Borrower or any of its Restricted Subsidiaries;



(f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder and other statutory or common law landlords’ liens under leases;



(g) Liens solely on any Cash or Cash Equivalent earnest money deposits made by Borrower or any
of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder or to secure any letter of credit, bank guarantee or similar obligation issued
in respect thereof;



(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property, consignment of goods and similar arrangements
entered into in the ordinary course of business;



(i) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



(j) any zoning or similar law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any real property;



(k) leases, subleases, licenses or sublicenses granted by Borrower or any of its Restricted
Subsidiaries in the ordinary course of business and not materially interfering in
any respect with the ordinary conduct of or materially detracting from the value of the
business of Borrower and its Restricted Subsidiaries, taken as a whole;


 


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(l) Liens described in Schedule 6.02 and modifications, replacements, renewals or extensions
thereof, provided, that no such Lien is spread to cover any additional property after the Closing
Date and the amount of the aggregate obligations, if any, secured by any such Lien are not
increased;



(m) Liens securing Indebtedness permitted pursuant to Section 6.01(k); provided, any such Lien
shall encumber only the asset acquired with the proceeds of such Indebtedness;



(n) Liens securing Indebtedness permitted by Section 6.01(l), provided any such Lien shall
encumber only those assets which secured such Indebtedness at the time such assets were acquired by
Borrower or its Restricted Subsidiaries;



(o) Liens on Cash and Cash Equivalents securing Borrower’s obligations under letters of credit
outstanding on the Closing Date with an aggregate stated and reimbursement obligation amount not in
excess of $25,000,000;



(p) Liens securing obligations under Secured Hedge Agreements permitted under Section 6.01(m);



(q) attachment and judgment Liens, to the extent and for so long as the underlying judgments
and decrees do not constitute an Event of Default pursuant to Section 9.01;



(r) customary encumbrances or restrictions (including put and call agreements) with respect to
the Equity Interests of any Joint Venture in favor of the other parties to such Joint Venture;



(s) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection or (ii) in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry;



(t) Liens in the nature of the right of setoff in favor of counterparties to contractual
agreements with the Credit Parties in the ordinary course of business;



(u) Liens securing Indebtedness permitted pursuant to Section 6.01(r) in an aggregate amount
not to exceed $10,000,000 at any time outstanding;



(v) Liens securing Indebtedness permitted under Section 6.01(b);



(w) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums thereto to the extent permitted under Section 6.01;



(x) Liens on the Collateral securing (i) Permitted First Priority Refinancing Debt, Permitted
Second Priority Refinancing Debt or Incremental Equivalent Debt and (ii) any Permitted Refinancing
thereof; and


 


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(y) other Liens on assets securing Indebtedness and other obligations in an aggregate amount
not to exceed $25,000,000 at any time outstanding.



Section 6.03 . No Further Negative Pledges. No Credit Party nor any of its Restricted
Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or hereafter acquired, to secure the
Obligations, except with respect to (a) restrictions identified on Schedule 6.03, (b) this
Agreement and the other Credit Documents, (c) the Senior Notes Documents, (d) any agreements
governing any purchase money Liens or Capital Lease obligations otherwise permitted hereby, if the
prohibition or limitation therein is only effective against the assets financed thereby, (e)
agreements for the benefit of the holders of Liens described in Section 6.02(n) and applicable
solely to the property subject to such Lien, (f) covenants in documents creating Liens permitted by
Section 6.02(n) prohibiting further Liens on the properties encumbered thereby; (g) any other
agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to
the Credit Documents on any Collateral securing the Obligations and that does not require the
direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of
the granting of Liens on or pledge of property of any Credit Party to secure the Obligations; (h)
covenants in any Indebtedness permitted pursuant to Section 6.01 to the extent such restrictions or
conditions are no more restrictive than the restrictions and conditions in the Credit Documents or,
in the case of Subordinated Indebtedness, are market terms at the time of issuance or, in the case
of Indebtedness of any Foreign Subsidiary, are imposed solely on Foreign Subsidiaries; (i) any
prohibition or limitation that (1) exists pursuant to applicable law, (2) consists of customary
restrictions and conditions contained in any agreement relating to the sale of any property
permitted under Section 6.07 pending the consummation of such sale solely with respect to such
property being disposed of, (3) restricts subletting or assignment of any lease governing a
leasehold interest of Borrower or a Restricted Subsidiary, (4) exists in any agreement in effect at
the time such Restricted Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was
not entered into in contemplation of such person becoming a Subsidiary, (5) is imposed by any
amendments or refinancings that are otherwise permitted by the Credit Documents of the contracts,
instruments or obligations referred to in clauses (c), (d), (g), (h) or (i)(4), provided that such
amendments and refinancings are, taken as a whole, no more materially restrictive with respect to
such prohibitions and limitations than those prior to such amendment or refinancing and (j)
customary provisions in Joint Venture agreements and other similar agreements applicable to Joint
Ventures and applicable solely to such Joint Venture entered into in the ordinary course of
business.



Section 6.04 . Restricted Junior Payments. No Credit Party shall, nor shall it permit any of
its Restricted Subsidiaries through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment (other than in connection with a Permitted
Refinancing therefore) except that:



(a) any Restricted Subsidiary of Borrower may declare and pay dividends or make other
distributions ratably to (i) its equity holders, (ii) Borrower or (iii) Guarantors;


 


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(b) so long as no Event of Default has occurred and is continuing or would result therefrom,
Borrower may purchase Borrower’s Equity Interest from present or former officers, directors or
employees upon the death, disability, retirement or
termination of employment or service of such officer, director or employee or otherwise under
any stock option or employee stock ownership plan approved by the Board of Directors of Borrower,
in an aggregate amount (net of any proceeds received by Borrower in connection with resales of any
Equity Interest so purchased) not exceeding $2,000,000 in any Fiscal Year (and any such portion
thereof not so used, beginning the amount for Fiscal Year 2012, may be carried forward to
subsequent Fiscal Years and applied subject to the conditions set forth in this clause (b)) and
$10,000,000 in the aggregate for all periods after the Closing Date;



(c) Borrower may make Restricted Junior Payments to redeem in whole or in part any of its
Equity Interest for another class of its Equity Interest or rights to acquire its Equity Interest
or with proceeds from substantially concurrent equity contributions or issuances of new Equity
Interest; provided that any terms and provisions material to the interests of the Lenders, when
taken as a whole, contained in such other class of Equity Interest are at least as advantageous to
the Lenders as those contained in the Equity Interest redeemed thereby; provided, further, that the
only consideration paid for any such redemption is Equity Interest of Borrower or the proceeds of
any substantially concurrent equity contribution or issuance of Equity Interest;



(d) Borrower may make regularly scheduled payments of interest in respect of any Subordinated
Indebtedness in accordance with the terms of, and only to the extent required by, and subject to
any subordination provisions contained in the indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued;



(e) so long as no Event of Default has occurred and is continuing or would result therefrom,
Borrower may purchase, redeem or otherwise acquire its Equity Interest for aggregate consideration
not in excess of $150,000,000 for all periods after the Closing Date; provided that after giving
effect to such purchase, redemption or acquisition, the sum of (i) the aggregate amount of
unrestricted Cash and Cash Equivalents held by Borrower and its Restricted Subsidiaries plus (ii)
the Revolving Commitments less the Total Utilization of Revolving Commitments, shall not be less
than $75,000,000 (it being understood that Cash and Cash Equivalents subject to the Lien of the
Collateral Documents and Reserved Funds shall not constitute restricted Cash or Cash Equivalents)
and



(f) so long as no Event of Default has occurred and is continuing or would result therefrom,
additional Restricted Junior Payments in an amount not to exceed the Available Amount determined at
such time.



Section 6.05. Restrictions on Subsidiary Distributions. Except as provided herein or in
documentation relating to Permitted First Priority Refinancing Debt, Permitted Second Priority
Refinancing Debt, Permitted Unsecured Refinancing Debt, Incremental Equivalent Debt or any
Permitted Refinancing thereof, no Credit Party shall, nor shall it permit any of its Restricted
Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of Borrower to
(a) pay dividends or make any other distributions on any of such Restricted Subsidiary’s Equity
Interests owned by Borrower or any other Restricted Subsidiary of Borrower, (b) repay or prepay any
Indebtedness owed by such Restricted Subsidiary to Borrower or any other Restricted Subsidiary of
Borrower, (c) make loans or advances to Borrower or any other Restricted Subsidiary of Borrower, or
(d) transfer, lease or license any of its property or assets to Borrower or any



 


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other Restricted Subsidiary of Borrower, other than (in the case of each of the foregoing
clauses (a) through (d)) restrictions: (i) any restrictions existing under the Credit Documents,
(ii) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or
entered into on the Closing Date, (iii) any encumbrance or restriction with respect to a Restricted
Subsidiary or any of its Restricted Subsidiaries pursuant to an agreement relating to any
Indebtedness incurred by such Restricted Subsidiary prior to the date on which it became a
Restricted Subsidiary (other than Indebtedness incurred as consideration in, in contemplation of,
or to provide all or any portion of the funds or credit support utilized to consummate the
transaction or series of related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary) and outstanding on such date, which encumbrance or restriction is not
applicable to Borrower or any other Restricted Subsidiary or the properties or assets of Borrower
or any other Restricted Subsidiary, (iv) any encumbrance or restriction pursuant to an agreement
effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause
(i), (ii) or (iii) of this covenant or this clause (iv) or contained in any amendment to an
agreement referred to in clause (i), (ii) or (iii) of this covenant or this clause (iv); provided,
however, that the encumbrances and restrictions contained in any such refinancing agreement or
amendment are not materially less favorable taken as a whole, as determined by Borrower in good
faith, to the Lenders than the encumbrances and restrictions contained in such predecessor
agreement, (v) with respect to clause (c), any encumbrance or restriction (A) that restricts the
subletting, assignment or transfer of any property or asset or right and is contained in any lease,
license or other contract entered into in the ordinary course of business or (B) contained in
security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such security agreements, (vi) any
restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been
entered into in connection with the disposition of all or substantially all of the Equity Interests
or assets of such Restricted Subsidiary, (vii) restrictions in the transfers of assets encumbered
by a Lien permitted by Section 6.02, (viii) any encumbrance or restriction arising under or in
connection with any agreement or instrument relating to any Indebtedness permitted by Section 6.01
if (A) either (x) the encumbrance or restriction applies only in the event of a payment default or
a default with respect to a financial covenant contained in the terms of such agreement or
instrument or (y) Borrower in good faith determines that such encumbrance or restriction will not
cause Borrower not to have the funds necessary to pay the Obligations when due and (B) the
encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary
in comparable financings (as determined in good faith by Borrower), (ix) any encumbrance or
restriction arising under or in connection with any agreement or instrument governing Equity
Interests of any Person other than a wholly owned Subsidiary that is acquired after the Closing
Date, (x) customary restrictions and conditions contained in any agreement relating to the
disposition of any property permitted by Section 6.07 pending the consummation of such disposition,
(xi) customary provisions in Joint Venture agreements and other similar agreements applicable to
Joint Ventures, (xii) any holder of a Lien permitted by Section 6.02(n) restricting the transfer of
the property subject thereto, (xiii) customary restrictions and conditions contained in any
agreement relating to the sale of any property permitted under Section 6.07 pending the
consummation of such sale, (xiv) any encumbrances or restrictions applicable solely to a Foreign
Subsidiary and contained in any credit facility extended to any Foreign Subsidiary and (xv)
customary provisions in partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and
other similar agreements entered into in the ordinary course of business that restrict the
transfer of ownership interests in such partnership, limited liability company or similar person.


 


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Section 6.06. Investments. No Credit Party shall, nor shall it permit any of its Restricted
Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:



(a) Investments in Cash and Cash Equivalents;



(b) Investments owned as of the Closing Date in any Restricted Subsidiary and Investments made
after the Closing Date in Borrower and any wholly owned Restricted Subsidiary of Borrower;



(c) Investments (1) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and (2) deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Borrower
and its Restricted Subsidiaries;



(d) intercompany loans to the extent permitted under Section 6.01(c) and other Investments in
Restricted Subsidiaries which are not Guarantors, provided that such Investments (including through
intercompany loans and any Permitted Acquisition) in Restricted Subsidiaries that are not
Guarantors shall not exceed at any time an aggregate amount of $50,000,000;



(e) loans and advances to employees of Borrower and its Restricted Subsidiaries made in the
ordinary course of business in an aggregate principal amount not to exceed $10,000,000;



(f) Permitted Acquisitions; provided that the sum of the aggregate amount of (i) Permitted
Acquisitions pursuant to which the Person whose Equity Interests are acquired does not become a
Guarantor and (ii) Investments made pursuant to clause (q) shall not at any time exceed
$200,000,000;



(g) Investments described in Schedule 6.06;



(h) Secured Hedge Agreements which constitute Investments;



(i) short term trade receivables in the ordinary course of business;



(j) guarantees to insurers required in connection with worker’s compensation and other
insurance coverage arranged in the ordinary course of business;



(k) non-cash consideration received in any disposition permitted by Section 6.08 to Persons
who are not Affiliates of Borrower;



(l) 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;


 


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(m) intercompany Investments by any Foreign Subsidiary in any other Foreign Subsidiary;



(n) advances of payroll payments to employees in the ordinary course of business;



(o) lease, utility and other similar deposits in the ordinary course of business;



(p) Investments of any Person in existence at the time such Person becomes a Restricted
Subsidiary; provided such Investment was not made in connection with or anticipation of such Person
becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;



(q) Permitted Foreign Investments the aggregate amount of which, together with the aggregate
amount of Investments made pursuant to the proviso to clause (f) shall not at any time exceed
$200,000,000;



(r) Investments in Joint Ventures in an aggregate amount not at any time to exceed
$25,000,000;



(s) so long as no Default has occurred and is continuing before or immediately after giving
effect thereto, any Investment in an amount not to exceed the Available Amount determined at such
time; and



(t) other Investments (including Investments in Unrestricted Subsidiaries) in an aggregate
amount for all such Investments under this clause (t) not to exceed $50,000,000 during the term of
this Agreement.



For purposes of covenant compliance with this Section 6.06, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or decreases in the
value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received
in cash in respect of such Investment. Notwithstanding the foregoing, in no event shall any Credit
Party make any Investment which results in or facilitates in any manner any Restricted Junior
payment not otherwise permitted under the terms of Section 6.04.



Section 6.07. Fundamental Changes; Acquisitions. No Credit Party shall, nor shall it permit
any of its Restricted Subsidiaries to, consummate any transaction of merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or acquire by
purchase or otherwise (other than purchases or other acquisitions of inventory, materials and
equipment and capital expenditures in the ordinary course of business) the business, property or
fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division
or line of business or other business unit of any Person, except:



(a) any Restricted Subsidiary of Borrower may be merged with or into Borrower or any
Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to Borrower or any Guarantor; provided, in the case of such a merger,
Borrower or such Guarantor, as applicable shall be the continuing or surviving Person;


 


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(b) Permitted Acquisitions;



(c) any Restricted Subsidiary may merge into or consolidate with any Person in order to
consummate a disposition made in compliance with Section 6.08;



(d) any Restricted Subsidiary may dissolve, liquidate or wind up its affairs at any time;
provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be
expected to have a Material Adverse Effect;



(e) pursuant to any merger between Borrower or a wholly-owned Restricted Subsidiary and any
other Person; provided, that Borrower or such wholly-owned Restricted Subsidiary, as the case may
be, is the surviving entity of any such merger; and



(f) Investments made in accordance with Section 6.06.



Section 6.08. Disposition of Assets. No Credit Party shall, nor shall it permit any of its
Restricted Subsidiaries to, convey, sell, lease or license, exchange, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its business, assets or
property of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, leased or licensed, except (a) sales and other
dispositions of assets that do not constitute Asset Sales and (b) Asset Sales; provided that, in
the case of clause (b), (x) the consideration received for such assets shall be in an amount at
least equal to the Fair Market Value thereof and (y) no less than 75% thereof shall be paid in Cash
or Cash Equivalents.



Section 6.09. Transactions with Shareholders and Affiliates. No Credit Party shall, nor
shall it permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of Borrower on terms that are materially less
favorable, taken as a whole, to Borrower or that Restricted Subsidiary, as the case may be, than
those that might be obtained in an arm’s length transaction with a Person that is not an Affiliate;
provided, the foregoing restriction shall not apply to (a) any transaction between Borrower and any
Guarantor; (b) customary fees and indemnifications paid to members of the Board of Directors of
Borrower and its Restricted Subsidiaries; (c) compensation arrangements for officers and other
employees of Borrower and its Restricted Subsidiaries entered into in the ordinary course of
business; (d) Restricted Junior Payments may be made to the extent permitted by Section 6.04; (e)
loans may be made and other transactions may be entered into by Borrower and its Restricted
Subsidiaries to the extent permitted by Sections 6.01, 6.06 and 6.07; (f) any transaction with an
Affiliate where the only consideration paid is Equity Interests of Borrower (other than
Disqualified Equity Interests); and (g) transactions described in Schedule 6.09.



Section 6.10. Conduct of Business. From and after the Closing Date, no Credit Party shall,
nor shall it permit any of its Restricted Subsidiaries to, will not, and will not permit any of its
Restricted Subsidiaries, to engage in any business other than a Permitted Business, except to an
extent that so doing would not be material to Borrower and its Restricted Subsidiaries, taken as a
whole.


 


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Section 6.11. Amendments or Waivers of Organizational Documents and Tender Offer Documents.
No Credit Party shall nor shall it permit any of its Restricted
Subsidiaries to, agree to any material amendment, restatement, supplement or other
modification to, or waiver of, any of its Organizational Documents or any of its material rights
under any Tender Offer Document after the Closing Date, in each case in a manner that is materially
adverse to the Lenders, without in each case obtaining the prior written consent of Requisite
Lenders to such amendment, restatement, supplement or other modification or waiver.



Section 6.12. Amendments or Waivers of with Respect to Certain Indebtedness. No Credit
Party shall, nor shall it permit any of its Restricted Subsidiaries to, amend or otherwise change
the terms of any Subordinated Indebtedness, if the effect of such amendment or change is to
increase the interest rate on such Subordinated Indebtedness, change (to earlier dates) any dates
upon which payments of principal or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other than to eliminate any such event of
default or increase any grace period related thereto), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions of such Subordinated
Indebtedness (or of any guaranty thereof), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such Subordinated Indebtedness (or
a trustee or other representative on their behalf) which would be materially adverse to any Credit
Party or Lenders.



Section 6.13 . Fiscal Year. No Credit Party shall, nor shall it permit any of its Restricted
Subsidiaries to change its Fiscal Year end from December 31.



ARTICLE 7

Financial Covenants




Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations (other than contingent indemnification obligations for which no
claim has been made) and cancellation or expiration or cash collateralization of all Letters of
Credit on terms reasonably satisfactory to the Issuing Bank, such Credit Party shall perform, and
shall cause each of its Restricted Subsidiaries to perform, the covenants in this Article 7.



Section 7.01. Interest Coverage Ratio. Borrower shall not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December
31, 2011, to be less than 4.00:1.00.



Section 7.02. Leverage Ratio. Borrower shall not permit the Leverage Ratio as of the last
day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2011, to exceed
4.00:1.00.



ARTICLE 8

Guaranty




Section 8.01 . Guaranty of the Obligations. Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty to Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of all Obligations when the
same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).


 


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Section 8.02. Payment by Guarantors. Guarantors hereby jointly and severally agree, in
furtherance of the foregoing and not in limitation of any other right which any Beneficiary may
have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower
to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in
Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum
of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and
unpaid interest on such Guaranteed Obligations (including interest which, but for Borrower’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed
Obligations, whether or not a claim is allowed against Borrower for such interest in the related
bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.



Section 8.03. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations
hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:



(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;



(b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to
the existence of such Event of Default;



(c) the obligations of each Guarantor hereunder are independent of the obligations of Borrower
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Borrower or any of such other guarantors and whether
or not Borrower is joined in any such action or actions;



(d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such
suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit,
affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed
Obligations;


 


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(e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (3) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (4) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (5) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (6) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (7)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Secured Hedge Agreement and any applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and even though such action operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of any Guarantor against any
other Credit Party or any security for the Guaranteed Obligations; and (8) exercise any other
rights available to it under the Credit Documents, any Secured Hedge Agreements or any Cash
Management Agreements; and



(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(1) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents, any Secured Hedge Agreements or any Cash Management Agreements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (2) any
rescission, waiver, amendment or modification of, or any consent to departure from, any of the
terms or provisions (including provisions relating to events of default) hereof, any of the other
Credit Documents, any of the Secured Hedge Agreements, any of the Cash Management Agreements or any
agreement or instrument executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such
Credit Document, such Secured Hedge Agreement, such Cash Management Agreement or any agreement
relating to such other



 


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guaranty or security; (3) the Guaranteed Obligations, or any agreement relating thereto, at
any time being found to be illegal, invalid or unenforceable in any respect; (4) the application of
payments received from any source (other than payments received pursuant to the other Credit
Documents, any of the Secured Hedge Agreements or any of the Cash Management Agreements or from the
proceeds of any security for the Guaranteed Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of
indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected
to apply such payment to any part or all of the Guaranteed Obligations; (5) any Beneficiary’s
consent to the change, reorganization or termination of the corporate structure or existence of
Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the
Guaranteed Obligations; (6) any failure to perfect or continue perfection of a security interest in
any collateral which secures any of the Guaranteed Obligations; (7) any defenses, set offs or
counterclaims which Borrower may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury; and (8) any other act or thing
or omission, or delay to do any other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.



Section 8.04. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of
Beneficiaries: i) any right to require any Beneficiary, as a condition of payment or performance by
such Guarantor, to (1) proceed against Borrower, any other guarantor (including any other
Guarantor) of the Guaranteed Obligations or any other Person, (2) proceed against or exhaust any
security held from Borrower, any such other guarantor or any other Person, (3) proceed against or
have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in
favor of any Credit Party or any other Person, or (4) pursue any other remedy in the power of any
Beneficiary whatsoever; ii) any defense arising by reason of the incapacity, lack of authority or
any disability or other defense of Borrower or any other Guarantor including any defense based on
or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower
or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations;
iii) any defense based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome than that of the
principal; iv) any defense based upon any Beneficiary’s errors or omissions in the administration
of the Guaranteed Obligations, except behavior which amounts to bad faith; v) (1) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder, (2) the benefit of
any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (3) any rights to set offs, recoupments and counterclaims, and (4) promptness, diligence
and any requirement that any Beneficiary protect, secure, perfect or insure any security interest
or lien or any property subject thereto; vi) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, the Secured Hedge Agreements, the Cash Management Agreements or any
agreement or instrument related thereto, notices of any renewal, extension or modification of the
Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to
Borrower and notices of any of the matters referred to in Section 8.03 and any right to consent to
any
thereof; and vii) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.


 


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Section 8.05. Guarantors’ Rights of Subrogation, Contribution, Etc. Until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled or cash collateralized,
each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor
now has or may hereafter have against Borrower or any other Guarantor or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including (i) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against Borrower with respect to
the Guaranteed Obligations, (ii) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Borrower, and (iii) any benefit
of, and any right to participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in
full and the Revolving Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled or cash collateralized, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations. Each Guarantor further agrees that, to the extent the
waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification
such Guarantor may have against Borrower or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against Borrower, to all right, title and
interest any Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution rights at any time
when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such
amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms hereof.



Section 8.06. Subordination of Other Obligations. Any Indebtedness of Borrower or any
Guarantor now or hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated
in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received
by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in
trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.



Section 8.07. Continual Guaranty. This Guaranty is a continuing guaranty and shall remain
in effect until all of the Guaranteed Obligations shall have been paid in full
and the Revolving Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled or cash collateralized. Each Guarantor hereby irrevocably waives any
right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.


 


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Section 8.08. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary
to inquire into the capacity or powers of any Guarantor or Borrower or the officers, directors or
any agents acting or purporting to act on behalf of any of them.



Section 8.09. Financial Condition of Borrower. Any Credit Extension may be made to Borrower
or continued from time to time, and any Secured Hedge Agreement or Cash Management Agreement may be
entered into from time to time, in each case without notice to or authorization from any Guarantor
regardless of the financial or other condition of Borrower at the time of any such grant or
continuation or at the time such Secured Hedge Agreement or Cash Management Agreement is entered
into, as the case may be. No Beneficiary shall have any obligation to disclose or discuss with any
Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of Borrower.
Each Guarantor has adequate means to obtain information from Borrower on a continuing basis
concerning the financial condition of Borrower and its ability to perform its obligations under the
Credit Documents, the Secured Hedge Agreements and the Cash Management Agreements, and each
Guarantor assumes the responsibility for being and keeping informed of the financial condition of
Borrower and of all circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary
to disclose any matter, fact or thing relating to the business, operations or conditions of
Borrower now known or hereafter known by any Beneficiary.



Section 8.10. Bankruptcy, Etc.



(a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or
insolvency case or proceeding of or against Borrower or any other Guarantor. The obligations of
Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Borrower or any other
Guarantor or by any defense which Borrower or any other Guarantor may have by reason of the order,
decree or decision of any court or administrative body resulting from any such proceeding.



(b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Borrower of any portion of such Guaranteed Obligations. Guarantors will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar Person to pay Administrative Agent, or allow the claim of Administrative Agent
in respect of, any such interest accruing after the date on which such case or proceeding is
commenced.


 


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(c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.



Section 8.11. Discharge of Guaranty Upon Sale of Guarantor. If all of the Equity Interests
of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed
of (including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such sale or disposition.



ARTICLE 9

Events Of Default




Section 9.01. Events of Default. If any one or more of the following conditions or events
shall occur:



(a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within three days after the date due; or



(b) Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any
term or condition contained in Section 2.06, Section 5.01(e), Section 5.02 (solely with respect to
Borrower), Article 6 or Article 7; or



(c) Breach of Representations, Etc. Any representation, warranty, certification or other
statement made or deemed made by any Credit Party in any Credit Document or in any statement or
certificate at any time given by any Credit Party or any of its Restricted Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false in any material
respect as of the date made or deemed made; or



(d) Other Defaults Under Credit Documents. Any Credit Party shall default in the performance
of or compliance with any term contained herein or any of the other Credit Documents, other than
any such term referred to in any other Section of this Section 9.01, and such default shall not
have been remedied or waived within thirty days
after the receipt by Borrower of notice from Administrative Agent or any Lender of such
default; or


 


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(e) Default in Other Agreements. (i) Failure of any Credit Party or any of their respective
Restricted Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section
9.01(a) or with respect to Secured Hedge Agreements) in an aggregate principal amount of
$35,000,000 or more, in each case beyond the grace period, if any, provided therefor or (ii) breach
or default by any Credit Party with respect to any other material term of (1) one or more items of
Indebtedness in the aggregate principal amounts referred to in clause (i) above or (2) any loan
agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each
case beyond the grace period, if any, provided therefor, if the effect of such breach or default is
to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such
holder or holders), to cause, that Indebtedness to become or be declared due and payable (or
subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or



(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Borrower or any of its
Restricted Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order
is not stayed; or any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against Borrower or any of its Restricted
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Borrower or any of its Restricted Subsidiaries, or over all or a
substantial part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of Borrower or any of
its Restricted Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any substantial part of the
property of Borrower or any of its Restricted Subsidiaries, and any such event described in this
clause (f) shall continue for sixty days without having been dismissed, bonded or discharged; or



(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Borrower or any of its Restricted
Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Borrower or any of its Restricted
Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Borrower or any of its
Restricted Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the board of directors (or similar
governing body) of Borrower or any of its Restricted Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the actions referred to
herein or in Section 9.01(f); or


 


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(h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or similar
process involving in the aggregate at any time an amount in excess of $35,000,000 (to the extent
not adequately covered by insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Borrower or any of its Restricted
Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded
or unstayed for a period of 60 days; or



(i) Dissolution. Any order, judgment or decree shall be entered against any Credit Party
decreeing the dissolution or split up of such Credit Party (other than as permitted under Section
6.07 and such order shall remain undischarged or unstayed for a period in excess of 60 days; or



(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to result in liability of Borrower,
any of its Restricted Subsidiaries or any of their respective ERISA Affiliates in excess of
$35,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest pursuant to Section
430(k) of the Internal Revenue Code or ERISA or a violation of Section 436 of the Internal Revenue
Code; or



(k) Change of Control. A Change of Control shall occur; or



(l) Guaranties, Collateral Documents and Other Credit Documents. At any time after the
execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the
priority required by the relevant Collateral Document, in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its control, or (iii)
any Credit Party shall contest the validity or enforceability of any Credit Document in writing or
deny in writing that it has any further liability, including with respect to future advances by
Lenders, under any Credit Document to which it is a party or shall contest the validity or
perfection of any Lien in any Collateral purported to be covered by the Collateral Documents; or



(m) Subordinated Indebtedness. Any Subordinated Indebtedness permitted hereunder or the
guarantees thereof shall cease, for any reason, to be validly subordinated to the Obligations of
the Credit Parties hereunder, as provided in the indenture governing such Subordinated
Indebtedness, or any Credit Party, any Affiliate of any Credit Party, the trustee in respect of the
Subordinated Notes or the holders of at least 25% in aggregate principal amount of the Subordinated
Notes shall so assert;


 


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THEN, (1) upon the occurrence of any Event of Default described in Section 9.01(f) or 9.01(g),
automatically, and (2) upon the occurrence and during the continuance of any other Event of
Default, at the request of (or with the consent of) Requisite Lenders, upon notice to Borrower by
Administrative Agent, (A) the Revolving Commitments, if any, of
each Lender having such Revolving Commitments and the obligation of Issuing Bank to issue any
Letter of Credit shall immediately terminate; (B) each of the following shall immediately become
due and payable, in each case without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal
amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time
to present, the drafts or other documents or certificates required to draw under such Letters of
Credit), and (III) all other Obligations (other than Obligations in respect of Secured Hedge
Agreements and Cash Management Agreements); provided, the foregoing shall not affect in any way the
obligations of Lenders under Section 2.03(b)(v) or Section 2.04(e); (C) Administrative Agent may
cause Collateral Agent to enforce any and all Liens and security interests created pursuant to
Collateral Documents; and (D) Administrative Agent shall direct Borrower to pay (and Borrower
hereby agrees upon receipt of such notice, or upon the occurrence of any Event of Default specified
in Sections 9.01(f) or 9.01(g) to pay) to Administrative Agent such additional amounts of cash as
reasonable requested by Issuing Bank, to be held as security for Borrower’s reimbursement
Obligations in respect of Letters of Credit then outstanding.



ARTICLE 10

Agents




Section 10.01 . Appointment of Agents. JPMorgan Chase Bank is hereby appointed (and JPMorgan
Chase Bank hereby accepts such appointment) Administrative Agent hereunder and under the other
Credit Documents and each Lender (including in its capacities as a potential counterparty under a
Secured Hedge Agreement or Cash Management Agreement) and the Issuing Bank hereby authorizes
JPMorgan Chase Bank (and JPMorgan Chase Bank hereby accepts such appointment) to act as
Administrative Agent in accordance with the terms hereof and the other Credit Documents. Each
Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and
the other Credit Documents, as applicable. The provisions of this Article 10 are solely for the
benefit of Agents and Lenders and no Credit Party shall have any rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and duties hereunder,
each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or for Borrower or any
of its Restricted Subsidiaries.



Section 10.02 . Powers and Duties.



(a) No Agent shall have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing, (i) no Agent shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is continuing, (ii) no Agent
shall have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such Agent is required to
exercise in writing as directed by the Requisite Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 11.05), and (iii)
except as expressly set forth herein, no Agent shall have any duty to disclose, and shall not be



 


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liable for the failure to disclose, any information relating to Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by
it with the consent or at the request of the Requisite Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in Section 11.05) or in
the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given to such Agent by
Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 3 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to Administrative Agent.



(b) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with
legal counsel (who may be counsel for Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.



Section 10.03. General Immunity.



(a) No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for
the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency
hereof or any other Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any financial or other
statements, instruments, reports or certificates or any other documents furnished or made by any
Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection
with the Credit Documents and the transactions contemplated thereby or for the financial condition
or business affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.


 


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(b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors, employees
or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in
connection with any of the Credit Documents except to the
extent caused by such Agent’s gross negligence or willful misconduct, as determined by a
final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be entitled
to refrain from any act or the taking of any action (including the failure to take an action) in
connection herewith or any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have
received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be
required to give such instructions under Section 11.05) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act
or (where so instructed) refrain from acting, or to exercise such power, discretion or authority,
in accordance with such instructions. Without prejudice to the generality of the foregoing, (i)
each Agent shall be entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be attorneys for Borrower and
its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting
or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in
accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to
give such instructions under Section 11.05).



(c) Delegation of Duties. Administrative Agent may perform any and all of its duties and
exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 10.03 and of Section 10.06 shall apply to any Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. All of the rights, benefits,
and privileges (including the exculpatory and indemnification provisions) of this Section 10.03 and
of Section 10.06 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and
shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were
named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent
appointed by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this
Agreement with respect to all such rights, benefits and privileges (including exculpatory rights
and rights to indemnification) and shall have all of the rights and benefits of a third party
beneficiary, including an independent right of action to enforce such rights, benefits and
privileges (including exculpatory rights and rights to indemnification) directly, without the
consent or joinder of any other Person, against any or all of Credit Parties and the Lenders, (ii)
such rights, benefits and privileges (including exculpatory rights and rights to indemnification)
shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent
shall only have obligations to Administrative Agent and not to any Credit Party, Lender or any
other Person and no Credit Party, Lender or any other Person shall have any rights, directly or
indirectly, as a third party beneficiary or otherwise, against such sub-agent.


 


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Section 10.04 . Agents Entitled to Act as Lender. Each bank serving as an Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not an Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any kind of business
with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.



Section 10.05. Lenders’ Representations, Warranties and Acknowledgment.



(a) Each Lender acknowledges that it has, independently and without reliance upon
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon Administrative Agent
or any other Lender and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any related agreement or any document furnished hereunder or thereunder. No Agent
shall have any duty or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to Lenders.



(b) Each Lender, by delivering its signature page to this Agreement, an Assignment Agreement,
a Joinder Agreement or a Refinancing Amendment and funding its Term Loans and/or Revolving Loans on
the Closing Date or by the funding of any New Term Loans, New Revolving Loans, Replacement
Revolving Loans or Replacement Term Loans, as the case may be, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Credit Document and each other document required to
be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date or as of
the date of funding of such New Term Loan, New Revolving Loans, Replacement Revolving Loans or
Replacement Term Loans.



Section 10.06. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent and the Issuing Bank, to the extent that such Agent or the
Issuing Bank shall not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against such Agent or the Issuing Bank in exercising its
powers, rights and remedies or performing its duties hereunder or under the other Credit Documents
or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement
or the other Credit Documents; provided, no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s or the Issuing Bank’s gross negligence or willful
misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
If any indemnity furnished to any Agent or the Issuing Bank for any purpose shall, in the opinion
of such Agent or the Issuing Bank, be insufficient or become impaired, such Agent or the Issuing
Bank may call for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished; provided, in no event shall this sentence
require any Lender to indemnify any Agent or the Issuing Bank against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such
Lender’s Pro Rata Share thereof; and provided further, this sentence shall not be deemed to require
any Lender to indemnify any Agent or the Issuing Bank against any liability, obligation, loss,
damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in
the immediately preceding sentence.


 


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Section 10.07. Successor Administrative Agent, Collateral Agent and Swing Line Lender.



(a) Administrative Agent shall have the right to resign at any time by giving prior written
notice thereof to Lenders and Borrower. Administrative Agent shall have the right to appoint a
financial institution to act as Administrative Agent hereunder, subject to the reasonable
satisfaction of Borrower and the Requisite Lenders, and Administrative Agent’s resignation shall
become effective on the earliest of (1) 30 days after delivery of the notice of resignation, (2)
the acceptance of such successor Administrative Agent by Borrower and the Requisite Lenders or (3)
such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation,
if a successor Administrative Agent has not already been appointed by the retiring Administrative
Agent, Requisite Lenders shall have the right, upon five Business Days’ notice to Borrower, to
appoint a successor Administrative Agent. If neither Requisite Lenders nor Administrative Agent
have appointed a successor Administrative Agent, Requisite Lenders shall be deemed to have
succeeded to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent, whereupon such retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. Except as provided above, any resignation of JPMorgan Chase Bank
or its successor as Administrative Agent pursuant to this Section shall also constitute notice of
the resignation of JPMorgan Chase Bank or its successor as Collateral Agent pursuant to Section 6.2
of the Collateral Agency Agreement. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article 10 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.



(b) In addition to the foregoing, Collateral Agent may resign at any time pursuant to the
Collateral Agency Agreement. After any retiring Collateral Agent’s resignation or removal under
the Collateral Agency Agreement as the Collateral Agent, the provisions of this Agreement and the
Collateral Documents shall inure to its benefit as to any actions taken or omitted to be taken by
it under this Agreement or the Collateral Documents while it was the Collateral Agent hereunder.



(c) Any resignation of JPMorgan Chase Bank or its successor as Administrative Agent pursuant
to this Section shall also constitute the resignation of JPMorgan Chase Bank or its successor as
Swing Line Lender, and any successor Administrative Agent appointed pursuant to this Section shall,
upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes
hereunder. In such event (i) Borrower shall prepay any outstanding Swing Line Loans made by the
retiring or removed Administrative Agent in its capacity as Swing Line Lender, (ii) upon such
prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender any
Swing Line Note held by it to Borrower for cancellation, and (iii)
Borrower shall issue, if so requested by successor Administrative Agent and Swing Line Loan
Lender, a new Swing Line Note to the successor Administrative Agent and Swing Line Lender, in the
principal amount of the Swing Line Loan Sublimit then in effect and with other appropriate
insertions.


 


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Section 10.08. Collateral Documents and Guaranty.



(a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect
to the Guaranty, the Collateral and the Collateral Documents; provided that neither Administrative
Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of
disclosure or any other obligation whatsoever to any holder of Obligations with respect to any
Secured Hedge Agreement. Subject to Section 11.05, without further written consent or
authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable may
execute any documents or instruments necessary to (i) in connection with a sale or disposition of
assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the
subject of such sale or other disposition of assets or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 11.05) have otherwise consented or
(ii) release any Guarantor from the Guaranty pursuant to Section 8.11 or with respect to which
Requisite Lenders (or such other Lenders as may be required to give such consent under Section
11.05) have otherwise consented.



(b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the
Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral Agent
and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to
realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that
all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on
behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and
remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii) in
the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall
be entitled, for the purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral payable by Collateral
Agent at such sale or other disposition.



(c) Rights under Secured Hedge Agreements. No Secured Hedge Agreement will create (or be
deemed to create) in favor of any Lender Counterparty that is a party thereto any rights in
connection with the management or release of any Collateral or of the obligations of any Guarantor
under the Credit Documents except as expressly provided in Section 11.05(c)(v) of this Agreement
and Section 10.02 of the Pledge and Security Agreement. By accepting the benefits of the
Collateral, such Lender Counterparty shall be deemed to have appointed Collateral Agent as its
agent and agreed
to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth
in this clause (c).


 


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(d) Release of Collateral and Guarantees, Termination of Credit Documents. Notwithstanding
anything to the contrary contained herein or any other Credit Document, when all Obligations (other
than obligations in respect of any Secured Hedge Agreement and contingent indemnification
obligations for which no claim has been made) have been paid in full, all Commitments have
terminated or expired and no Letter of Credit shall be outstanding, upon request of Borrower,
Administrative Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate
of any Lender that is a party to any Secured Hedge Agreement) take such actions as shall be
required to release its security interest in all Collateral, and to release all Guaranteed
Obligations provided for in any Credit Document, whether or not on the date of such release there
may be outstanding Obligations in respect of Secured Hedge Agreements. Any such release of
Guaranteed Obligations shall be deemed subject to the provision that such Guaranteed Obligations
shall be reinstated if after such release any portion of any payment in respect of the Obligations
guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, Borrower or any Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.



ARTICLE 11

Miscellaneous




Section 11.01. Notices.



(a) Notices Generally. Any notice or other communication herein required or permitted to be
given to a Credit Party, Collateral Agent, Administrative Agent, Swing Line Lender or Issuing Bank
shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit
Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise
indicated to Administrative Agent in writing. Except as otherwise set forth in Section 2.24 or
paragraph (b) below, each notice hereunder shall be in writing and may be personally served or sent
by telefacsimile or United States mail or courier service and shall be deemed to have been given
when delivered in person or by courier service and signed for against receipt thereof, upon receipt
of telefacsimile, or three Business Days after depositing it in the United States mail with postage
prepaid and properly addressed; provided, no notice to any Agent or Collateral Agent shall be
effective until received by such Agent or Collateral Agent as applicable; provided further, any
such notice or other communication shall at the request of Administrative Agent be provided to any
sub-agent appointed pursuant to Section 10.03(c) hereto as designated by Administrative Agent from
time to time.



(b) Electronic Communications.


 


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(i) Notices and other communications to any Agent, Collateral Agent, Lenders, Swing
Line Lender and Issuing Bank hereunder may be delivered or furnished by electronic
communication (including e mail and
Internet or intranet websites, including the Platform) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not apply to notices
to any Agent, any Lender, Swing Line Lender or any applicable Issuing Bank pursuant to
Article 2 if such Person has notified Administrative Agent that it is incapable of
receiving notices under such Section by electronic communication. Administrative Agent or
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or communications.
Unless Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing clause (i)
of notification that such notice or communication is available and identifying the website
address therefor.




(ii) Each Credit Party understands that the distribution of material through an
electronic medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution and agrees and assumes the risks associated with
such electronic distribution, except to the extent caused by the willful misconduct or
gross negligence of Administrative Agent, as determined by a final, non-appealable
judgment of a court of competent jurisdiction.




(iii) The Platform and any Approved Electronic Communications are provided “as is”
and “as available”. None of the Agents nor the Collateral Agent nor any of their
respective officers, directors, employees, agents, advisors or representatives (the “Agent
Affiliates”) warrant the accuracy, adequacy, or completeness of the Approved Electronic
Communications or the Platform and each expressly disclaims liability for errors or
omissions in the Platform and the Approved Electronic Communications. No warranty of any
kind, express, implied or statutory, including any warranty of merchantability, fitness
for a particular purpose, non-infringement of third party rights or freedom from viruses
or other code defects is made by the Agent Affiliates in connection with the Platform or
the Approved Electronic Communications.




(iv) Each Credit Party, each Lender, each Issuing Bank and each Agent agrees that
Administrative Agent may, but shall not be obligated to, store any Approved Electronic
Communications on the Platform in accordance with Administrative Agent’s customary
document retention procedures and policies.




(v) Any notice of Default or Event of Default may be provided by telephone if
confirmed promptly thereafter by delivery of written notice thereof.


 


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(c) Private Side Information Contacts. Each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the “Private Side
Information” or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable law, including United States federal and state securities laws, to make
reference to information that is not made available through the “Public Side Information” portion
of the Platform and that may contain Non-Public Information with respect to Borrower, its
Subsidiaries or their securities for purposes of United States federal or state securities laws.
In the event that any Public Lender has determined for itself to not access any information
disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders
may have availed themselves of such information and (ii) neither Borrower nor Administrative Agent
has any responsibility for such Public Lender’s decision to limit the scope of the information it
has obtained in connection with this Agreement and the other Credit Documents.



Section 11.02. Expenses. Whether or not the transactions contemplated hereby shall be
consummated, Borrower agrees to pay promptly (i) all the actual and reasonable out-of-pocket costs
and expenses incurred by the Administrative Agent and the Arrangers in connection with the
negotiation, preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto (including the reasonable fees, expenses and disbursements
of one primary counsel (with exceptions for conflicts of interest) and one local counsel in each
relevant jurisdiction); (ii) all other actual and reasonable out-of-pocket costs and expenses
incurred by each Agent and the Issuing Bank in connection with the syndication of the Loans and
Commitments and the transactions contemplated by the Credit Documents and any consents, amendments,
waivers or other modifications thereto; (iii) without duplication of any costs and expenses payable
by Borrower pursuant to the Collateral Agency Agreement, all the actual costs and reasonable
expenses of Collateral Agent in connection with creating, perfecting, recording, maintaining and
preserving Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance
premiums and reasonable fees, expenses and disbursements of one primary counsel (with exceptions
for conflicts of interest) and one local counsel in each relevant jurisdiction; and (iv) after the
occurrence of a Default or an Event of Default, all costs and expenses, including reasonable
attorneys’ fees and costs of settlement, incurred by any Agent, the Issuing Bank and Lenders in
enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or
under the other Credit Documents by reason of such Default or Event of Default (including in
connection with the sale, lease or license of, collection from, or other realization upon any of
the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a “work out” or
pursuant to any insolvency or bankruptcy cases or proceedings.


 


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Section 11.03. Indemnity.



(a) In addition to the payment of expenses pursuant to Section 11.02, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
each of their respective officers, partners, members, directors, trustees, advisors, employees,
agents, sub-agents and affiliates (each, an “Indemnitee”), from and against any and all Indemnified
Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the
gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final,
non-appealable judgment of a court of competent jurisdiction. To the extent that the undertakings
to defend, indemnify, pay and hold harmless set forth in this Section 11.03 may be unenforceable in
whole or in part because they are violative of any law or public policy, the applicable Credit
Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable
law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any
of them.



(b) To the extent permitted by applicable law, no party hereto shall assert, and each party
hereto hereby waives, any claim against each Credit Party or each Lender, each Agent, Arranger, as
applicable, and their respective Affiliates, directors, employees, attorneys, agents or sub-agents,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty
imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or
in any way related to, this Agreement or any Credit Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the transactions contemplated
hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event
occurring in connection therewith, and each party hereto hereby waives, releases and agrees not to
sue upon any such claim or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor provided that nothing contained in this sentence shall limit the
indemnity of the Credit Parties set forth in this Section 11.03.



(c) Each Credit Party also agrees that no Lender, Agent, Arranger nor their respective
Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any
Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any
other person in connection with or as a result of this Agreement or any Credit Document or any
agreement or instrument contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act
or omission or event occurring in connection therewith, in each case, except in the case of any
Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by
such Credit Party or its affiliates, shareholders, partners or other equity holders have been found
by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Lender, Agent, Arranger or their respective
Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations
under this Agreement or any Credit Document or any agreement or instrument contemplated hereby or
thereby or referred to herein or therein. In no event will such Lender, Agent, Arranger or their
respective Affiliates, directors, employees, attorneys, agents or sub-agents have any liability for
any indirect, consequential, special or punitive damages in connection with or as a result of such
Lender’s, Agent’s, Arranger’s or their respective
Affiliates’, directors’, employees’, attorneys’, agents’ or sub-agents’ activities related to
this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby
or referred to herein or therein.


 


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(d) This Section 11.03 shall not apply to any Taxes, which shall be governed solely by Section
2.20, other than Taxes that represent losses, claims or damages arising from any non-Tax claim.



Section 11.04. Set-Off. In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any Event of Default
each Lender and Issuing Bank is hereby authorized by each Credit Party at any time or from time to
time, without notice to any Credit Party or to any other Person (other than Administrative Agent),
any such notice being hereby expressly waived, to set off and to appropriate and to apply any and
all deposits (general or special, including Indebtedness evidenced by certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender or Issuing Bank to or for the credit or the account of any Credit
Party against and on account of the obligations and liabilities of any Credit Party to such Lender
or Issuing Bank hereunder, the Letters of Credit and participations therein and under the other
Credit Documents, including all claims of any nature or description arising out of or connected
hereto, the Letters of Credit and participations therein or with any other Credit Document,
irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder
or (ii) the principal of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder shall have become due and payable pursuant to Article 2
and although such obligations and liabilities, or any of them, may be contingent or unmatured.



Section 11.05. Amendments and Waivers.



(a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections 11.05(b)
and 11.05(c), no amendment, modification, termination or waiver of any provision of the Credit
Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided that Administrative Agent
may, with the consent of Borrower only, amend, modify or supplement this Agreement to (i) cure any
ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement
does not adversely affect the rights of any Lender or Issuing Bank or (ii) as provided in clause
(d) or (e) of this Section 11.05.



(b) Affected Lenders’ Consent. Without the written consent of each Lender that would be
directly affected thereby, no amendment, modification, termination, or consent shall be effective
if the effect thereof would:




(i) extend the scheduled final maturity of any Loan or Note;




(ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




(iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;


 


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(iv) reduce the rate of interest on any Loan (other than any waiver of any increase
in the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or any
premium payable hereunder; provided that only the consent of the Requisite Lenders shall
be necessary to change the definition of Leverage Ratio or the component definitions
thereof but only to the extent that the rate of interest on the Loans and fees and
premiums payable hereunder are not or deemed to not be reduced by such amendment,
modification, termination or consent;




(v) extend the time for payment of any such interest or fees;




(vi) reduce the principal amount of any Loan or any reimbursement obligation in
respect of any Letter of Credit;




(vii) amend, modify, terminate or waive any provision of Section 2.13(b)(ii) (with
respect to the reduction of the Revolving Commitments of each Lender proportionately to
its Pro Rata Share), this Section 11.05(b), Section 11.05(c) or any other provision of
this Agreement that expressly provides that the consent of all Lenders is required;




(viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”; provided,
with the consent of Requisite Lenders, additional extensions of credit pursuant hereto may
be included in the determination of “Requisite Lenders” or “Pro Rata Share” on
substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving
Commitments and the Revolving Loans are included on the Closing Date; provided, further
that if such amendment affects only Lenders under the Term Loan or Lenders under the
Revolving Loan, then with the consent of Lenders in the relevant Class;




(ix) release all or substantially all of the Collateral or all or substantially all
of the Guarantors from the Guaranty except as expressly provided in the Credit Documents;
or




(x) consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under any Credit Document except as expressly permitted by Sections 6.07
and 6.08;




provided that for the avoidance of doubt, all Lenders shall be deemed directly affected
thereby with respect to any amendment described in clauses (vii), (viii), (ix) and (x).



(c) Other Consents. No amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall:




(i) increase any Revolving Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender; provided, no amendment, modification or waiver
of any condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Revolving Commitment of any Lender;


 


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(ii) amend, modify, terminate or waive any provision hereof relating to the Swing
Line Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




(iii) alter the required application of any repayments or prepayments as between
Classes pursuant to Section 2.15 without the consent of Lenders holding more than 50% of
the aggregate Term Loan Exposure of all Lenders or Revolving Exposure of all Lenders, as
applicable, of each Class which is being allocated a lesser repayment or prepayment as a
result thereof; provided, Requisite Lenders may waive, in whole or in part, any prepayment
so long as the application, as between Classes, of any portion of such prepayment which is
still required to be made is not altered;




(iv) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.04(e) without the
written consent of Administrative Agent and of Issuing Bank;




(v) amend, modify or waive this Agreement or the Pledge and Security Agreement so as
to alter the ratable treatment of Obligations arising under the Credit Documents and
Obligations arising under Secured Hedge Agreements or the definition of “Lender
Counterparty,” “Secured Hedge Agreement,” “Obligations,” or “Secured Obligations” (as
defined in any applicable Collateral Document) in each case in a manner adverse to any
Lender Counterparty with Obligations then outstanding without the written consent of any
such Lender Counterparty; or




(vi) amend, modify, terminate or waive any provision of Article 10 as the same
applies to any Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.



(d) Refinancing Amendments. In addition, notwithstanding Sections 11.05(a), (b) and (c), this
Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders
providing the Replacement Term Loans (as defined below) and/or the Replacement Revolving
Commitments (as defined below), as applicable (such amendment, a “Refinancing Amendment”), to
permit:




(i) the refinancing of all or a portion of outstanding Term Loans (“Refinanced Term
Loans”) with replacement term loans (“Replacement Term Loans”) hereunder; provided that
(A) the aggregate principal amount (exclusive of premiums and other costs) of such
Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced
Term Loans, (B) such Replacement Term Loans will rank pari passu or junior in right of
payment with the other Loans and Commitments hereunder, (C) the Replacement Term Loan
Maturity Date of such Replacement Term Loans shall not be prior to the Term Loan Maturity
Date of such Refinanced Term Loans, (D) the Weighted Average Life to Maturity of such
Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of
such Refinanced Term Loans at the time of such refinancing (except to the extent of
nominal amortization for periods where amortization has been eliminated as a result of
prepayment of the Term



 


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Loans) and (E) all other terms applicable to such Replacement Term Loans (excluding
pricing, premiums and optional prepayment or optional redemption provisions) are customary
market terms for term loans at the time of the issuance of such Replacement Term Loans and
shall be substantially identical to, or, taken as a whole, less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced Term
Loans, except to the extent necessary to provide for covenants and other terms applicable
to any period after the latest final maturity of the Term Loans in effect immediately
prior to such refinancing; and/or




(ii) the refinancing of all or a portion of outstanding Revolving Commitments
(“Refinanced Revolving Commitments”) with replacement revolving commitments (“Replacement
Revolving Commitments”) hereunder; provided that (A) the aggregate principal amount
(exclusive of premiums and other costs) of such Replacement Revolving Commitments shall
not exceed the aggregate principal amount of such Refinanced Revolving Commitments, (B)
such Replacement Revolving Commitments will rank pari passu or junior in right of payment
with the other Loans and Commitments hereunder, (C) the Replacement Revolving Commitment
Termination Date of such Replacement Term Loans shall not be prior to the Revolving
Commitment Termination Date of such Refinanced Revolving Commitments and (D) all other
terms applicable to such Replacement Revolving Commitments (excluding pricing, premiums
and optional prepayment or optional redemption provisions) are customary market terms for
term loans at the time of the issuance of such Replacement Revolving Commitments and shall
be substantially identical to, or, taken as a whole, less favorable to the Lenders
providing such Replacement Revolving Commitments than, those applicable to such Refinanced
Revolving Commitments, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest termination of the Revolving Commitments
in effect immediately prior to such refinancing.



On the effective date of a Refinancing Amendment on which Replacement Revolving Commitments
are effected, subject to the satisfaction of the foregoing terms and conditions, each Replacement
Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made
thereunder (a “Replacement Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and
each Lender providing such Replacement Revolving Commitments shall become a Lender with respect to
such Replacement Revolving Commitments and all matters relating thereto. On the effective date of
a Refinancing Amendment on which Replacement Term Loans are effected, subject to the satisfaction
of the foregoing terms and conditions, each Replacement Term Loan shall be deemed for all purposes
a Term Loan and each Lender providing such Replacement Term Loans shall become a Lender with
respect to such Replacement Term Loans and all matters relating thereto.



(e) Interim Escrow or Other Arrangements. In addition, notwithstanding Sections 11.05(a), (b)
and (c), this Agreement may be amended with the written consent of Administrative Agent and
Borrower to provide for arrangements under which redemption, defeasance or other payments with
respect to Senior Notes are delayed or deferred for a period to end not later than May 1, 2012 (the
“Special Arrangement Period”), which amendments may include without limitation, provisions allowing
for Loans to be borrowed by an Unrestricted Subsidiary or an unaffiliated third party as



 


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borrower (such Unrestricted Subsidiary or unaffiliated third party, the “Special Arrangement
Borrower”) with no obligation on the part of Borrower or any Guarantor during the Special
Arrangement Period and before the assumption referred to in clause (B) below) to repay the Loans,
provided that (A) the obligations with respect to the Loans are secured by an amount of Cash and
Cash Equivalents in an amount not less than 100% of the principal amount thereof plus interest to
accrue through the end of the Special Arrangement Period (assuming for this purpose that the
interest rate on the Loans in effect on the Closing Date remains constant throughout the Special
Arrangement Period) and (B) the Loans will be required to be prepaid in full on the last day of the
Special Arrangement Period if the Borrower and the Guarantors have not assumed the obligations of
the Special Arrangement Borrower under the Credit Documents hereunder on or before such date,
including the obligation to secure the Obligations pursuant to the Collateral Documents.



(f) Execution of Amendments, Etc. Administrative Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute amendments, modifications, waivers or consents on
behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and
for the specific purpose for which it was given. 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. Any amendment, modification, termination, waiver or consent effected in accordance
with this Section 11.05 shall be binding upon each Lender at the time outstanding, each future
Lender and, if signed by a Credit Party, on such Credit Party.



Section 11.06. Successors and Assigns; Participations.



(a) Generally. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any interest therein may
be assigned or delegated by any Credit Party without the prior written consent of Administrative
Agent and all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the
Agents, the Collateral Agent and Lenders and other Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.



(b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the corresponding Commitments and
Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment
or Loan shall be effective, in each case, unless and until recorded in the Register following
receipt of a fully executed Assignment Agreement effecting the assignment or transfer thereof,
together with the required forms and certificates regarding tax matters and any fees payable in
connection with such assignment, in each case, as provided in Section 11.06(d). Each assignment
shall be recorded in the Register promptly following receipt by Administrative Agent of the fully
executed Assignment Agreement and all other necessary documents and approvals, prompt notice
thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be maintained,
as applicable. The date of such recordation of a transfer shall be referred to herein as the
“Assignment Effective Date.” Any request, authority or consent of any Person who, at the time of
making such request or giving such authority
or consent, is listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Commitments or Loans.


 


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(c) Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer
all or a portion of its rights and obligations under this Agreement, including all or a portion of
its Commitment or Loans owing to it or other Obligations (provided, however, that pro rata
assignments shall not be required and each assignment shall be of a uniform, and not varying,
percentage of all rights and obligations under and in respect of any applicable Loan and any
related Commitments):




(i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Borrower and Administrative Agent and, in
the case of assignments of Revolving Loans or Revolving Commitments to any such Person
(except in the case of assignments made by or to JPMorgan Chase Bank), consented to by
each of the Issuing Bank and the Swing Line Lender (such consent not to be unreasonably
withheld or delayed); and




(ii) to any Person meeting the criteria of clause (ii) of the definition of the term
of “Eligible Assignee” upon giving of notice to Borrower and Administrative Agent and, in
the case of assignments of Revolving Loans or Revolving Commitments to any such Person
(except in the case of assignments made by or to JPMorgan Chase Bank), consented to by
each of Borrower, the Issuing Bank, the Swing Line Lender and Administrative Agent (such
consent not to be (x) unreasonably withheld or delayed or, (y) in the case of Borrower,
required at any time an Event of Default shall have occurred and then be continuing);
provided, further that (A) Borrower shall be deemed to have consented to any such
assignment of Revolving Loans or Revolving Commitments unless it shall object thereto by
written notice to Administrative Agent within 5 Business Days after having received notice
thereof and (B) each such assignment pursuant to this Section 11.06(c)(ii) shall be in an
aggregate amount of not less than (I) $5,000,000 (or such lesser amount as may be agreed
to by Borrower and Administrative Agent or as shall constitute the aggregate amount of the
Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the
assignment of the Revolving Commitments and Revolving Loans and (II) $1,000,000 (or such
lesser amount as may be agreed to by Borrower and Administrative Agent or as shall
constitute the aggregate amount of the Term Loan of the assigning Lender) with respect to
the assignment of Term Loans.



Notwithstanding anything herein to the contrary, no such assignment shall be made to any
Disqualified Lender; provided that no Agent shall have any liability or responsibility to monitor,
police or control any assignments to Disqualified Lenders.



(d) Mechanics. Assignments and assumptions of Loans and Commitments by Lenders shall be
effected by manual execution and delivery to Administrative Agent of an Assignment Agreement.
Assignments made pursuant to the foregoing provision shall be effective as of the Assignment
Effective Date. In connection with all assignments there shall be delivered to Administrative
Agent such forms, certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to
Section 2.20(c), together with payment to Administrative Agent of a registration and
processing fee of $3,500 (except that no such registration and processing fee shall be payable (y)
in connection with an assignment by or to JPMorgan Chase Bank or any Affiliate thereof or (z) in
the case of an Assignee which is already a Lender or is an affiliate or an Approved Fund of a
Lender or a Person under common management with a Lender).


 


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(e) Representations and Warranties of Assignee. Each Lender, upon execution and delivery
hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 11.06, the disposition of such Commitments or Loans
or any interests therein shall at all times remain within its exclusive control).



(f) Effect of Assignment. Subject to the terms and conditions of this Section 11.06, as of
the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and obligations
of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as reflected in
the Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii)
the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have
been assigned to the assignee, relinquish its rights (other than any rights which survive the
termination hereof under Section 11.08) and be released from its obligations hereunder (and, in the
case of an assignment covering all or the remaining portion of an assigning Lender’s rights and
obligations hereunder, such Lender shall cease to be a party hereto on the Assignment Effective
Date; provided, anything contained in any of the Credit Documents to the contrary notwithstanding,
(y) Issuing Bank shall continue to have all rights and obligations thereof with respect to such
Letters of Credit until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall continue to be
entitled to the benefit of all indemnities hereunder as specified herein with respect to matters
arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the
Commitments shall be modified to reflect any Commitment of such assignee and any Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Borrower shall issue and deliver new Notes, if
so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding
Loans of the assignee and/or the assigning Lender.



(g) Participations.


 


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(i) Each Lender shall have the right at any time to sell one or more participations
to any Person (other than Borrower, any of its Subsidiaries or any of its Affiliates) in
all or any part of its Commitments, Loans or in any other Obligation. Each Lender that
sells a participation pursuant to this Section
11.06(g) shall, acting solely for this purpose as an agent of Borrower, maintain a
register on which it records the names and addresses of each participant and the amount
and terms of its participations (including principal amounts and interest thereon from
time to time) (each, a “Participant Register”). The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of a participation with respect
to the Loan, Commitment or Obligation, as the case may be, for all purposes under this
Agreement, notwithstanding any notice to the contrary; provided, that no Lender shall have
any obligation to disclose all or any portion of the Participant Register (including the
identity of any Participant or any information relating to a Participant’s interest in any
Commitment, Loans, Letters of Credit or its other obligations under any Credit Document)
to any Person except to the extent that such disclosure is necessary to establish that
such Commitment, Loan, Letter of Credit or other obligation is in registered form under
Section 5f.103-1(c) of the United States Treasury regulations. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.




(ii) The holder of any such participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to take or omit
to take any action hereunder except that the participation agreement may provide that such
holder’s consent is required for the Lender to approve any amendment, modification or
waiver that would (A) extend the final scheduled maturity of any Loan, Note or Letter of
Credit (unless such Letter of Credit is not extended beyond the Revolving Commitment
Termination Date) in which such 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 Commitment shall not constitute a change in the
terms of such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant’s participation is not
increased as a result thereof), (B) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement or (C) release all or
substantially all of the Collateral under the Collateral Documents or all or substantially
all of the Guarantors from the Guaranty (in each case, except as expressly provided in the
Credit Documents) supporting the Loans hereunder in which such participant is
participating.




(iii) Borrower agrees that each participant shall be entitled to the benefits of
Sections 2.18(c), 2.19 and 2.20 (subject to the requirements and limitations therein,
including the requirements under Section 2.20(f), it being understood that the
documentation required under Section 2.20(f) shall be delivered to the participating
Lender) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (c) of this Section; provided that (A) such participant
agrees to be subject to the provisions of Sections 2.19, 2.20 and 2.22 as if such
participant were a Lender and had acquired its interest by assignment pursuant to
paragraph (c) of this Section and (B) shall not be entitled to receive any greater
payments under Sections 2.19 and



 


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2.20, with respect to any participation, than its participating Lender would have
been entitled to receive, except to the extent such entitlement to receive a greater
payment results from a Change in Law that occurs after the participant acquired the
applicable participation. To the extent permitted by law, each participant also shall be
entitled to the benefits of Section 11.04 as though it were a Lender, provided such
participant agrees to be subject to Section 2.17 as though it were a Lender. Each Lender
that sells a participation agrees, at the Borrower’s request and expense, to use
reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section
2.22 with respect to any participant.



(h) Certain Other Assignments and Participations. In addition to any other assignment or
participation permitted pursuant to this Section 11.06 any Lender may assign, pledge and/or grant a
security interest in all or any portion of its Loans, the other Obligations owed by or to such
Lender, and its Notes, if any, to secure obligations of such Lender including any Federal Reserve
Bank as collateral security pursuant to Regulation A of the Board of Governors and any operating
circular issued by such Federal Reserve Bank; provided, that no Lender, as between Borrower and
such Lender, shall be relieved of any of its obligations hereunder as a result of any such
assignment and pledge, and provided further, that no such pledge or assignment shall substitute the
applicable Federal Reserve Bank, pledgee or trustee for such Lender as a party hereto.



Section 11.07. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default
if such action is taken or condition exists.



Section 11.08. Survival of Representations, Warranties and Agreements. All representations,
warranties and agreements made herein shall survive the execution and delivery hereof and the
making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary,
the agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 11.02, 11.03 and
11.04 and the agreements of Lenders set forth in Section 2.17, 10.03(b) and 10.06 shall survive the
payment of the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement
of any amounts drawn thereunder, and the termination hereof.



Section 11.09. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent
or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent, the Collateral Agent and each Lender hereby
are cumulative and shall be in addition to and independent of all rights, powers and remedies
existing by virtue of any statute or rule of law or in any of the other Credit Documents or any of
the Secured Hedge Agreements. Any forbearance or failure to exercise, and any delay in exercising,
any right, power or remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.


 


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Section 11.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any other Person or
against or in payment of any or all of the Obligations. To the extent that any Credit Party makes
a payment or payments to Administrative Agent, Issuing Bank or Lenders (or to Administrative Agent,
on behalf of Lenders or Issuing Bank), or any Agent, Issuing Bank or Lender enforces any security
interests or exercises any right of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law or any equitable cause, then,
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in
full force and effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.



Section 11.11. Severability. In case any provision in or obligation hereunder or under any
other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



Section 11.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations
of Lenders hereunder are several and no Lender shall be responsible for the obligations or
Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit
Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts
payable at any time hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be
necessary for any other Lender to be joined as an additional party in any proceeding for such
purpose.



Section 11.13. Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.



Section 11.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING
OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST)
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE
APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.


 


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Section 11.15. CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE,
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER
CREDIT DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY
AGREEMENT GOVERNED BY A LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY
COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES
THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION
WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.



Section 11.16. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER
OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED
IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER
THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 11.16 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


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Section 11.17. Certain Regulatory Matters. It is the intent of Borrower and its Restricted
Subsidiaries, Administrative Agent and the Lenders that all parties hereto and the consummation of
the transactions contemplated hereby shall comply with all laws, regulations and orders of any
applicable Governmental Authority. In the event such parties take any action hereunder or exercise
any rights or remedies herewith, Borrower and each Restricted Subsidiary of Borrower agrees to
cooperate with each Lender and Administrative Agent in taking actions as may be reasonably
requested in order for such parties to obtain all necessary approvals or orders or similar
authorizations from, or make all filings, notices or declarations before, any Governmental
Authority, including without limitation, the FAA, FCC, NOAA or DDTC.



Section 11.18. Confidentiality. Each Agent (which term shall for the purposes of this
Section 11.18 include the Arranger and the Collateral Agent), and each Lender (which term shall for
the purposes of this Section 11.18 include the Issuing Bank) shall hold all non public information
regarding Borrower and its Subsidiaries and their businesses identified as such by Borrower and
obtained by such Agent or such Lender pursuant to the requirements hereof in accordance with such
Agent’s and such Lender’s customary procedures for handling confidential information of such
nature, it being understood and agreed by Borrower that, in any event, Administrative Agent may
disclose such information to the Lenders and each Agent and each Lender may make (i) disclosures of
such information to Affiliates of such Lender or Agent and to their respective agents and advisors
(and to other Persons authorized by a Lender or Agent to organize, present or disseminate such
information in connection with disclosures otherwise made in accordance with this Section 11.18),
(ii) disclosures of such information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
of any Loans or any participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) to any swap or derivative transaction relating to Borrower
and its obligations (provided, such assignees, transferees, participants, counterparties and
advisors are advised of and agree to be bound by either the provisions of this Section 11.18 or
other provisions at least as restrictive as this Section 11.18), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency shall
undertake in writing to preserve the confidentiality of any confidential information relating to
Credit Parties received by it from any Agent or any Lender, (iv) disclosures in connection with the
exercise of any remedies hereunder or under any other Credit Document, (v) disclosures required or
requested by any governmental agency or representative thereof or by the NAIC or pursuant to legal
or judicial process; provided, unless specifically prohibited by applicable law or court order,
each Lender and each Agent shall make reasonable efforts to notify Borrower of any request by any
governmental agency or representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such Lender by such
governmental agency) for disclosure of any such non public information prior to disclosure of such
information, (vi) disclosures of information that becomes publicly available or that is received
from an unaffiliated third party that is not subject to a confidentiality agreement with Borrower



 


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and (vii) disclosures made with the consent of Borrower. In addition, each Agent and each
Lender may disclose the existence of this Agreement and the information about this Agreement to
market data collectors, similar services providers to the lending industry, and service providers
to the Agents and the Lenders in connection with the administration and management of this
Agreement and the other Credit Documents. Notwithstanding anything to the contrary set forth
herein, each party (and each of their respective employees, representatives or other agents) may
disclose to any and all persons without limitation of any kind, the tax treatment and tax structure
of the transactions contemplated by this Agreement and all materials of any kind (including
opinions and other tax analyses) that are provided to any such party relating to such tax treatment
and tax structure. However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing sentence shall not
apply) to the extent reasonably necessary to enable the parties hereto, their respective
Affiliates, and their and their respective Affiliates’ directors and employees to comply with
applicable securities laws. For this purpose, “tax structure” means any facts relevant to the
federal income tax treatment of the transactions contemplated by this Agreement but does not
include information relating to the identity of any of the parties hereto or any of their
respective Affiliates.



Section 11.19. Usury Savings Clause. Notwithstanding any other provision herein, the
aggregate interest rate charged with respect to any of the Obligations, including all charges or
fees in connection therewith deemed in the nature of interest under applicable law shall not exceed
the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount
of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount
of interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable
usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Borrower.



Section 11.20. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of an executed signature page
of this Agreement by facsimile or electronic transmission shall be effective as delivery of a
manually executed counterpart hereof.



Section 11.21. Effectiveness; Entire Agreement. This Agreement shall become effective upon
the execution of a counterpart hereof by each of the parties hereto and
receipt by Borrower and Administrative Agent of written notification of such execution and
authorization of delivery thereof.


 


135









 





Section 11.22. PATRIOT Act. Each Lender and Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the
PATRIOT Act, it is required to obtain, verify and record information that identifies each Credit
Party, which information includes the name and address of each Credit Party and other information
that will allow such Lender or Administrative Agent, as applicable, to identify such Credit Party
in accordance with the PATRIOT Act.



Section 11.23. Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment Agreement shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



Section 11.24. No Fiduciary Duty. Each Agent, the Collateral Agent, each Arranger, each
Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”),
may have economic interests that conflict with those of the Credit Parties, their stockholders
and/or their affiliates. Each Credit Party agrees that nothing in the Credit Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any Lender, on the one hand, and such Credit Party, its stockholders or
its affiliates, on the other. The Credit Parties acknowledge and agree that (i) the transactions
contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the
Credit Parties, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit
Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or
the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise any Credit
Party, its stockholders or its Affiliates on other matters) or any other obligation to any Credit
Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is
acting solely as principal and not as the agent or fiduciary of any Credit Party, its management,
stockholders, creditors or any other Person. Each Credit Party acknowledges and agrees that it has
consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. Each Credit Party agrees that it will not claim that any Lender has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such
Credit Party, in connection with such transaction or the process leading thereto.



[Remainder of page intentionally left blank]




 


136









 







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



	 	 	 	 	 
	 	DIGITALGLOBE, INC.

 	 
	 	By:  	/s/ Yancey L. Spruill
 	 
	 	 	Name:  	Yancey L. Spruill 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Treasurer 	 
	 
	 	 	 
	 	By:  	/s/ J. Alison Alfers
 	 
	 	 	Name:  	J. Alison Alfers 	 
	 	 	Title:  	Senior Vice President,
Secretary and General Counsel 	 
	 



	 	 	 	 	 
	 	DG CONSENTS SUB, INC.

 	 
	 	By:  	/s/ Amy M. Gibbs
 	 
	 	 	Name:  	Amy M. Gibbs 	 
	 	 	Title:  	Treasurer 	 
	 



	 	 	 	 	 
	 	DIGITALGLOBE INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Erwin D. Sontani
 	 
	 	 	Name:  	Erwin D. Sontani 	 
	 	 	Title:  	Secretary 	 
	 



[Signature Page to Credit Agreement]




 


 









 







	 	 	 	 	 
	 	MORGAN STANLEY SENIOR FUNDING, INC.,

as a Lender

 	 
	 	By:  	/s/ Reagan C. Philipp
 	 
	 	 	Name:  	Reagan C. Philipp 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]





 


 









 







	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as

Administrative Agent, Collateral Agent

and a Lender

 	 
	 	By:  	/s/ Gregory T. Martin
 	 
	 	 	Name:  	Gregory T. Martin 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]





 


 









 







	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, as a Lender

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director Banking
Products Services, U.S. 	 
	 
	 	 	 
	 	By:  	/s/ Iria R. Otsa
 	 
	 	 	Name:  	Iria R. Otsa 	 
	 	 	Title:  	Associate Director Banking
Products Services, U.S. 	 
	 



[Signature Page to Credit Agreement]




 


 









 







	 	 	 	 	 
	 	BARCLAYS BANK PLC, as a Lender

 	 
	 	By:  	/s/ Robert Chen
 	 
	 	 	Name:  	Robert Chen 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Credit Agreement]





 


 









 







	 	 	 	 	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ Elizabeth M. Gonzalez
 	 
	 	 	Name:  	Elizabeth M. Gonzalez 	 
	 	 	Title:  	Vice President and Director 	 
	 



[Signature Page to Credit Agreement]





 


 









 







	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB, as a Lender

 	 
	 	By:  	/s/ Alexander L. Rody
 	 
	 	 	Name:  	Alexander L. Rody 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Credit Agreement]





 


 









 







APPENDIX A

TO CREDIT AND GUARANTY AGREEMENT




Revolving Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro Rata	 
	Lender	 	Revolving Commitment	 	 	Share	 
	Morgan Stanley Senior Funding, Inc.
	 	$	27,000,000	 	 	 	27.0	%
	JPMorgan Chase Bank, N.A.
	 	$	27,000,000	 	 	 	27.0	%
	Citibank, N.A.
	 	$	21,000,000	 	 	 	21.0	%
	Raymond James Bank, FSB
	 	$	10,000,000	 	 	 	10.0	%
	Barclays Bank PLC
	 	$	7,500,000	 	 	 	7.5	%
	UBS Loan Finance LLC
	 	$	7,500,000	 	 	 	7.5	%
	Total
	 	$	100,000,000.00	 	 	 	100	%
	 
	 	 	 	 	 	 






APPENDIX A-2-1




 


 









 







APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




DIGITALGLOBE, INC.


1601 Dry Creek Drive

Suite 260

Longmont, Colorado 80503

Attention: Yancey L. Spruill

Facsimile: 303-684-4048

E-mail: yspruill@digitalglobe.com




DG CONSENTS SUB, INC.

DIGITALGLOBE INTERNATIONAL, INC.


1601 Dry Creek Drive

Suite 260

Longmont, Colorado 80503

Attention: Erwin D. Sontani

Facsimile: 303-684-4512

E-mail: esontani@digitalglobe.com




in each case, with a copy to:


Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square

New York, NY 10036

Attention: Stephanie Teicher

Facsimile: 917-777-2181

E-mail:stephanie.teicher@skadden.com





 


APPENDIX B-1









 







JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, Collateral Agent,

Swing Line Lender, Issuing Bank and a Lender




Principal Office:


10 South Dearborn, Fl #7

Chicago, IL 60603

Attention: Nanette Wilson

Phone: 312-385-7084

Facsimile: 888-299533

Email: jpm.agency.servicing.4@jpmchase.com




with a copy to:


2200 Ross Ave, Fl#3, TX1-2903

Dallas, TX 75201-2787

Attention: Gregory T. Martin

Phone: 214-965-2171

Email: gregory.t.martin@jpmorgan.com





 


APPENDIX B-2