Exhibit 10.1





Exhibit 10.1




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of October 25, 2011




among




VERISK ANALYTICS, INC., and

INSURANCE SERVICES OFFICE, INC.,

as the Co-Borrowers,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and L/C Issuer,




and




The Other Lenders Party Hereto




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and

J.P. MORGAN SECURITIES LLC,

as

Joint Lead Arrangers and Joint Book Managers




JPMORGAN CHASE BANK, N.A.,

as

Syndications Agent




	 	 	 
	MORGAN STANLEY BANK, N.A.,

as 

Co-Documentation Agent
	 	WELLS FARGO BANK, N.A.,

as

Co-Documentation Agent






 












 







Table of Contents




	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	27	 
	1.04 Accounting Terms
	 	 	28	 
	1.05 Rounding
	 	 	29	 
	1.06 Times of Day
	 	 	29	 
	1.07 Letter of Credit Amounts
	 	 	29	 
	1.08 Interpretation and Construction of Exceptions/Carveouts to Article VII Negative Covenants
	 	 	29	 
	1.09 Additional Alternative Currencies
	 	 	29	 
	1.10 Exchange Rates; Currency Equivalents
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	30	 
	2.01 Committed Loans
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	31	 
	2.03 Letters of Credit
	 	 	32	 
	2.04 Swing Line Loans
	 	 	41	 
	2.05 Prepayments
	 	 	44	 
	2.06 Termination or Reduction of Commitments
	 	 	45	 
	2.07 Repayment of Loans
	 	 	45	 
	2.08 Interest
	 	 	45	 
	2.09 Fees
	 	 	46	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable
Rate
	 	 	47	 
	2.11 Evidence of Debt
	 	 	47	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	48	 
	2.13 Sharing of Payments by Lenders
	 	 	50	 
	2.14 Increase in Commitments
	 	 	50	 
	2.15 Joint and Several Liability
	 	 	52	 
	2.16 Cash Collateral
	 	 	52	 
	2.17 Defaulting Lenders
	 	 	53	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	55	 
	3.01 Taxes
	 	 	55	 
	3.02 Illegality
	 	 	59	 
	3.03 Inability to Determine Rates
	 	 	59	 
	3.04 Increased Costs
	 	 	60	 
	3.05 Compensation for Losses
	 	 	61	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	62	 
	3.07 Survival
	 	 	62	 





 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	62	 
	4.01 Conditions of Initial Credit Extension
	 	 	62	 
	4.02 Conditions to all Credit Extensions
	 	 	64	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	65	 
	5.01 Existence, Qualification and Power
	 	 	65	 
	5.02 Authorization; No Contravention
	 	 	65	 
	5.03 Governmental Authorization; Other Consents
	 	 	65	 
	5.04 Binding Effect
	 	 	66	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	66	 
	5.06 Litigation
	 	 	66	 
	5.07 No Default
	 	 	66	 
	5.08 Ownership of Property; Liens
	 	 	67	 
	5.09 Environmental Compliance
	 	 	67	 
	5.10 Insurance
	 	 	67	 
	5.11 Taxes
	 	 	67	 
	5.12 ERISA Compliance
	 	 	67	 
	5.13 Subsidiaries; Equity Interests
	 	 	68	 
	5.14 Margin Regulations; Investment Company Act
	 	 	68	 
	5.15 Disclosure
	 	 	69	 
	5.16 Compliance with Laws
	 	 	69	 
	5.17 Taxpayer Identification Number
	 	 	69	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	69	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	70	 
	6.01 Financial Statements
	 	 	70	 
	6.02 Certificates; Other Information
	 	 	70	 
	6.03 Notices
	 	 	73	 
	6.04 Payment of Obligations
	 	 	73	 
	6.05 Preservation of Existence, Etc.
	 	 	73	 
	6.06 Maintenance of Properties
	 	 	74	 
	6.07 Maintenance of Insurance
	 	 	74	 
	6.08 Compliance with Laws
	 	 	74	 
	6.09 Books and Records
	 	 	74	 
	6.10 Inspection Rights
	 	 	74	 
	6.11 Use of Proceeds
	 	 	74	 
	6.12 Additional Guarantors
	 	 	75	 
	6.13 Pari Passu Status
	 	 	75	 
	6.14 Private Placement Facilities
	 	 	75	 
	6.15 Most Favored Lender Status
	 	 	75	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	76	 
	7.01 Liens
	 	 	76	 
	7.02 Priority Indebtedness; Permitted Subsidiary Acquisition Indebtedness
	 	 	78	 
	7.03 Fundamental Changes
	 	 	78	 
	7.04 Dispositions
	 	 	78	 
	7.05 Change in Nature of Business
	 	 	79	 
	7.06 Transactions with Affiliates
	 	 	79	 
	7.07 Use of Proceeds
	 	 	79	 
	7.08 Financial Covenants
	 	 	79	 
	7.09 Restricted Payments
	 	 	79	 
	7.10 Sales and Leasebacks
	 	 	79	 
	7.11 Sale of Receivables
	 	 	80	 
	7.12 Accounting Changes
	 	 	80	 





 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	80	 
	8.01 Events of Default
	 	 	80	 
	8.02 Remedies Upon Event of Default
	 	 	82	 
	8.03 Application of Funds
	 	 	83	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	84	 
	9.01 Appointment and Authority
	 	 	84	 
	9.02 Rights as a Lender
	 	 	84	 
	9.03 Exculpatory Provisions
	 	 	84	 
	9.04 Reliance by Administrative Agent
	 	 	85	 
	9.05 Delegation of Duties
	 	 	85	 
	9.06 Resignation of Administrative Agent
	 	 	86	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	87	 
	9.08 No Other Duties, Etc.
	 	 	87	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	87	 
	9.10 Collateral and Guaranty Matters
	 	 	88	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	88	 
	10.01 Amendments, Etc.
	 	 	88	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	90	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	92	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	92	 
	10.05 Payments Set Aside
	 	 	94	 
	10.06 Successors and Assigns
	 	 	95	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	99	 
	10.08 Right of Setoff
	 	 	100	 
	10.09 Interest Rate Limitation
	 	 	100	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	100	 
	10.11 Survival of Representations and Warranties
	 	 	101	 
	10.12 Severability
	 	 	101	 
	10.13 Replacement of Lenders
	 	 	101	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	102	 
	10.15 Waiver of Jury Trial
	 	 	103	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	103	 
	10.17 Electronic Execution of Assignments and Certain Other Documents.
	 	 	104	 
	10.18 USA PATRIOT Act
	 	 	104	 
	10.19 Time of the Essence
	 	 	104	 





 


iii









 





SCHEDULES




	 	 	 
	1.01	 	Existing Letters of Credit

	2.01	 	Commitments and Applicable Percentages

	5.03	 	Other Consents

	5.05	 	Supplement to Interim Financial Statements

	5.06	 	Litigation

	5.09	 	Environmental Compliance

	5.12	 	ERISA Compliance

	5.13	 	Subsidiaries; Equity Interests

	5.18	 	Intellectual Property Matters

	7.01	 	Existing Liens

	10.02	 	Administrative Agent’s Office; Certain Addresses for Notices







EXHIBITS




	 	 	 
	 	 	Form of

	 	 	 

	A	 	Committed Loan Notice

	B	 	Swing Line Loan Notice

	C	 	Note

	D	 	Compliance Certificate

	E-1	 	Assignment and Assumption

	E-2	 	Administrative Questionnaire

	E-3	 	Joinder

	F	 	Continuing Guaranty

	G	 	Opinion Matters







 


iv









 







AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT (hereinafter, as it may be from time to time
amended, modified, extended, renewed, substituted, and/or supplemented, referred to as this
“Agreement”) is entered into as of October 25, 2011, by and among VERISK ANALYTICS, INC., a
Delaware corporation (“Verisk”), and INSURANCE SERVICES OFFICE, INC., a Delaware
corporation (“ISO”, and together with Verisk, the “Co-Borrowers”, and individually
a “Co-Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



The Co-Borrowers have requested that the Lenders amend and restate that certain Credit
Agreement dated as of July 2, 2009, executed by and among, inter alia, Insurance Services Office,
Inc., certain Lenders, and the Agent (hereinafter, as it has been from time to time amended,
modified, extended, renewed, substituted, and/or supplemented prior to the date hereof, referred to
as the “Original Credit Agreement”) and provide the Co-Borrowers with an amended and
restated revolving credit facility (the “Facility”), and the Lenders are willing to do so
on the terms and conditions set forth herein.



In consideration of these premises and the mutual representations, covenants and agreements of
the Co-Borrowers, the Agent and the Lenders, each party hereto hereby promises, covenants and
agrees to amend, modify, and restate in its entirety the Original Loan Agreement with all of the
terms, conditions, and provisions set forth hereinbelow and all of the terms, conditions, and
provisions of the Original Loan Agreement are hereby deemed superseded, substituted, and replaced
by the following:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS





1.01 Defined Terms.




As used in this Agreement, the following terms shall have the meanings set forth below:



“Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Co-Borrowers and the Lenders.



“Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit “E-2” attached hereto and made a part hereof or any other form approved
by the Administrative Agent.



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


 


1









 






“Aggregate Commitments” means the Commitments of all the Lenders.



“Agreement” means this Amended and Restated Credit Agreement, as it may be from time
to time amended, modified, extended, renewed, substituted, and/or supplemented.



“Alternative Currency” means any currency (other than Dollars) that is approved in
accordance with Section 1.08.



“Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the L/C Issuer at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.17. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Funded Debt Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	 	Eurodollar	 	Base	 	 	 
	Pricing	 	Funded Debt	 	Commitment	 	Rate	 	Rate	 	Letter of	 
	Level	 	Leverage Ratio	 	Fee	 	Margin	 	Margin	 	Credit Fee	 
	1
	 	 < 1.75:1	 	17.5 bps	 	125.0 bps	 	25.0 bps	 	125.0 bps
	2
	 	≥ 1.75 but ≤ 2.25:1	 	22.5 bps	 	150.0 bps	 	50.0 bps	 	150.0 bps
	3
	 	> 2.25:1 but ≤ 3.25:1	 	30.0 bps	 	187.5 bps	 	87.5 bps	 	187.5 bps






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Funded Debt Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 2 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall remain in effect until the date on which such Compliance
Certificate is delivered. The Applicable Rate in effect from the Closing Date through the date on
which the Administrative Agent receives the Co-Borrowers’ Compliance Certificate and related
financial statements for its third fiscal quarter of the 2011 fiscal year shall be determined based
upon Pricing Level 2.


 


2









 





For the purposes of calculating the Consolidated Funded Debt Leverage Ratio in connection with
this definition only, and for no other purpose, to the extent that Verisk or any direct or indirect
Subsidiary of Verisk acquires a Person, the Administrative Agent shall include in its calculation
of Consolidated EBITDA the pro forma effect of such acquisition as if such acquisition shall have
occurred on the first date of the applicable test period.



Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



“Applicable Time” means, with respect to any payments in any Alternative Currency, the
local time in the place of settlement for such Alternative Currency as may be determined by the L/C
Issuer to be necessary for timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.



“Approved Fund” means any Fund 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 Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities LLC, in their capacities as joint lead arrangers and joint book managers.



“Assets” means, at any time, the total assets of Verisk and its direct and indirect
Subsidiaries on a consolidated basis which would be shown as assets on a consolidated balance sheet
of Verisk and its consolidated Subsidiaries as of such time prepared in accordance with GAAP, after
eliminating all amounts properly attributable to minority interests, if any, in the stock and
surplus of Subsidiaries.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
“E-1” attached hereto and made a part hereof or any other form approved by the Administrative
Agent.



“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capitalized Lease.



“Audited Financial Statements” means the audited consolidated balance sheet of Verisk
and its direct and indirect Subsidiaries for the fiscal year ended December 31, 2010, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of Verisk and its direct and indirect Subsidiaries, including the notes thereto.


 


3









 





“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.




“Bank of America” means Bank of America, N.A. and its successors.



“Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Prime Rate for such day, (b) the sum of the Federal Funds Rate for such day
plus fifty basis points (0.50%), and (c) except during any Eurodollar Unavailability
Period, the Eurodollar Rate for a one month Interest Period beginning on such day (or if such day
is not a Business Day, the immediately preceding Business Day) plus one hundred basis
points (1.0%).




“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.




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




“Borrower Materials” has the meaning specified in Section 6.02.



“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



“Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations).
For purposes of this definition, the purchase price of equipment that is purchased simultaneously
with the trade-in of existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit
granted by the seller of such equipment for the equipment being traded in at such time or the
amount of such insurance proceeds, as the case may be.



“Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



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


 


4









 





“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (i) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or
directives promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States 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 or issued.




“Change of Control” means an event or series of events by which:




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of 35%
or more of the equity securities of Verisk entitled to vote for members of the board of
directors or equivalent governing body of Verisk on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to
any option right); or




(b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of Verisk cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a member of that
board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or


 


5









 






(c) any Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of Verisk, or control
over the equity securities of Verisk entitled to vote for members of the board of directors
or equivalent governing body of Verisk on a fully-diluted basis (and taking into account all
such securities that such Person or group has the right to acquire pursuant to any option
right) representing 35% or more of the combined voting power of such securities.



“Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



“Co-Borrower” and “Co-Borrowers” have the meanings specified in the
introductory paragraph hereto.




“Code” means the Internal Revenue Code of 1986.



“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Co-Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations,
and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



“Commitment Letter” means the commitment letter with respect to the Facility, dated
October 4, 2011, among the Co-Borrowers, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as
Lenders, the Administrative Agent and the Arrangers.



“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.




“Committed Loan” has the meaning specified in Section 2.01.



“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit “A” attached hereto and made a part hereof.



“Common Guaranty” means a collective reference to any guaranty or guaranties of any
Indebtedness of either Co-Borrower and/or their respective Subsidiaries (a) under the Indenture or
any of the Private Placement Facilities or (b) in favor of any other Person provided that (i) such
Person (or an authorized representative of such Person) executes and delivers to the Administrative
Agent, for the benefit of the Lenders, a “Joinder Agreement” (as such term is defined in the
Sharing Agreement) and (ii) no Event of Default would result from such Co-Borrower’s or such
Subsidiaries’ incurrence of such Indebtedness, as any of said guaranties may
be from time to time amended, modified, extended, renewed, substituted, and/or supplemented.


 


6









 





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



“Consolidated EBIT” means, for any period, for Verisk and its direct and indirect
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period
plus (a) the following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period; (ii) the provision for Federal, state, local and
foreign income taxes payable by Verisk and its direct and indirect Subsidiaries for such period;
(iii) non-cash charges for the appreciation of ESOP shares; (iv) non-cash stock option expenses
under FASB Accounting Standards Codification 718 for such period; (v) non-cash expenses in
connection with ISO’s Top Hat Plan and Deferred Compensation Plan for such period, to the extent
such expenses are the result of increasing the participant liabilities for said plans due to the
appreciation in value of the investments held in said plan; (vi) non-cash expenses other than
temporary impairment of ISO’s Top Hat Plan and Deferred Compensation Plan for such period, to the
extent such expenses are the result of the depreciation in value of the investments held in said
plan; (vii) non-cash loss on the disposal of fixed assets for such period; and (viii) other
non-recurring expenses of Verisk and its direct and indirect Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or any future period and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of Verisk and its direct and indirect
Subsidiaries for such period; (ii) non-cash gains in connection with ISO’s Top Hat Plan and
Deferred Compensation Plan for such period, to the extent such gains are the result of decreasing
the participant liabilities for said plans due to the depreciation in value of the investments
held; and (iii) other non-recurring non-cash items increasing Consolidated Net Income for such
period.



“Consolidated EBITDA” means, for any period, for Verisk and its direct and indirect
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period
plus (a) the following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period; (ii) the provision for Federal, state, local and
foreign income taxes payable by Verisk and its direct and indirect Subsidiaries for such period;
(iii) depreciation and amortization expense; (iv) non-cash charges for the appreciation of ESOP
shares; (v) non-cash stock option expenses under FASB Accounting Standards Codification 718 for
such period; (vi) non-cash expenses in connection with ISO’s Top Hat Plan and Deferred Compensation
Plan for such period, to the extent such expenses are the result of increasing the participant
liabilities for said plans due to the appreciation in value of the investments held; (vii) non-cash
expenses other than temporary impairment of ISO’s Top Hat Plan and Deferred Compensation Plan for
such period, to the extent such expenses are the result of the depreciation in value of the
investments held in said plan; (viii) non-cash loss on the disposal of fixed assets for such
period; and (ix) other non-recurring expenses of Verisk and its direct and indirect Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of Verisk and its
direct and indirect Subsidiaries for such period; (ii) non-cash gains in connection with ISO’s Top
Hat Plan and Deferred Compensation Plan for such period, to the extent such gains are the result of
decreasing the participant liabilities for said plans due to the depreciation in value of the
investments held; and (iii) other non-recurring non-cash items increasing Consolidated Net
Income for such period.


 


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“Consolidated Funded Debt Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date -to- (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended. For the purposes of calculating the
Consolidated Funded Debt Leverage Ratio in connection with determining compliance with the
financial covenant set forth and contained in Section 7.08(b) of this Agreement only, and
for no other purpose, to the extent that Verisk or any direct or indirect Subsidiary of Verisk
acquires a Person, the Administrative Agent shall include in its calculation of Consolidated EBITDA
the pro forma effect of such acquisition as if such acquisition shall have occurred on the first
date of the applicable test period.



“Consolidated Funded Indebtedness” means, as of any date of determination, for Verisk
and its direct and indirect Subsidiaries on a consolidated basis, the sum of (a) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements
or other similar instruments, (b) all purchase money Indebtedness, (c) all obligations, whether
contingent or otherwise, arising under letters of credit (including standby and commercial letters
of credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of Property or services (other than
obligations to pay the earn out portion of the purchase price for Permitted Acquisitions and trade
accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of
Capitalized Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above
of Persons other than Verisk or any direct or indirect Subsidiary of Verisk, (g) without
duplication, all Guarantees by Verisk and/or ISO of Permitted Subsidiary Acquisition Indebtedness,
and (h) all Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which Verisk or a direct or indirect Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to Verisk or such direct or
indirect Subsidiary.



“Consolidated Interest Charges” means, for any period, for Verisk and its direct and
indirect Subsidiaries on a consolidated basis, all interest, premium payments, debt discount, fees,
charges and related expenses of Verisk and its direct and indirect Subsidiaries in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP (whether paid in
cash or accrued); provided, however, (a) interest on any debt paid in kind and (b) interest that is
due and payable more than five (5) years from the incurrence of the debt under which such interest
is payable, shall, in each case, not be counted as “Consolidated Interest Charges”.



“Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBIT for the period of the four prior fiscal quarters ending on such date
to (b) Consolidated Interest Charges for such period.



“Consolidated Net Income” means, for any period, for Verisk and its direct and
indirect Subsidiaries on a consolidated basis, the net income of Verisk and its direct and indirect
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.


 


8









 





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



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.




“Customary Permitted Liens” means the following:




(a) Liens (other than Environmental Liens and any Lien imposed under ERISA) for taxes,
assessments or charges of any Governmental Authority or claims not yet due or which are
being contested in good faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the extent required by
GAAP;




(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other like Liens (other than any Lien imposed under ERISA) imposed by Laws,
including, without limitation, Liens in favor of any Governmental Authority securing
progress payments made under government contracts created in the ordinary course of business
and for amounts not yet due or which are being contested in good faith by appropriate
proceedings which are sufficient to prevent imminent foreclosure of such Liens, are promptly
instituted and diligently conducted and with respect to which adequate reserves or other
appropriate provision are being maintained to the extent required by GAAP;




(c) Liens (other than any Lien imposed under ERISA) incurred or deposits made in the
ordinary course of business (including, without limitation, surety bonds and appeal bonds)
in connection with workers’ compensation, unemployment insurance and other types of social
security benefits or to secure the performance of tenders, bids, leases, contracts,
statutory obligations and other similar obligations or arising as a result of progress
payments or deposits under government contracts (including foreign government contracts);
provided that in each such case such Liens (i) were not incurred or made in
connection with the incurrence or maintenance of Indebtedness, the borrowing of money, the
obtaining of advances or credit and (ii) do not in the aggregate materially detract from the
value of the Property so encumbered or materially impair the use thereof in the operation of
Verisk’s or its direct and indirect consolidated Subsidiaries’ respective businesses;




(d) easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations, encroachments,
variations and other restrictions, charges or encumbrances (whether or not recorded)
affecting the use of real property or impairing the use thereof which are imposed by
law or arise in the ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Person owning such Property;


 


9









 






(e) Liens arising out of and with respect to customer deposits made in the ordinary
course of the Co-Borrowers’ respective businesses;




(f) Liens arising as a result of the filing of any financing statement under any
applicable state uniform commercial code or comparable Laws of any jurisdiction covering
consigned or leased goods which do not constitute assets of the Co-Borrowers and which is
not intended as security; and




(g) extensions, renewals or replacements of any Lien referred to in clauses (a)
through (f) above; provided that (i) in the case of clauses (a) through (f)
above, the principal amount of the obligation secured thereby is not increased and (ii) any
such extension, renewal or replacement is limited to the Property originally encumbered
thereby.



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



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



“Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate
applicable to Base Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum.



“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Co-Borrowers, the Administrative Agent or any Lender that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to
its funding obligations hereunder or under other agreements in which it commits to extend credit,
(c) has failed, within three Business Days after request by the Administrative Agent, to confirm in
a manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority.


 


10









 





“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any Property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.




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



“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the L/C Issuer at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.



“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



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



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
either Co-Borrower, any other Loan Party or any of their respective Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.



“Environmental Lien” means a Lien in favor of any Governmental Authority for (a) any
liability under any Environmental Laws or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of any Hazardous Materials
into the environment.


 


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“Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.




“ERISA” means the Employee Retirement Income Security Act of 1974.



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Co-Borrowers within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Co-Borrowers or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which such entity was a “substantial employer” (as such term is
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Co-Borrowers
or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan
amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of
proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; (g) the determination that any Pension Plan is considered an
at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and
432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Co-Borrowers or any ERISA Affiliate.



“ESOP” means that certain Insurance Services Office, Inc. Employee Stock Ownership
Plan established by the ESOP Trust Agreement dated January 3, 1997 as it may be amended and/or
modified from time to time, in a manner approved by the Administrative Agent (such approval not to
be unreasonably withheld or conditioned).




“Eurodollar Rate” means:




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


 


12









 






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



“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurodollar Rate.



“Eurodollar Unavailability Period” means any period of time during which a notice
delivered to the Co-Borrowers in accordance with Section 3.03(a) remains in full force and
effect.




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



“Excluded Issuances” by any Person means any secondary issuance or sale of Equity
Interests in such Person (i.e., the issuance or sale of such additional Equity Interests from which
such Person receives no cash proceeds) or issuances or sales of Equity Interests in such Person
pursuant to the issuance or exercise of options issued in connection with employee benefit plans.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Co-Borrowers hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Co-Borrowers are located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts payable to a Lender that
has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Co-Borrowers under
Section 10.13), any United States withholding tax that (i) is required to be imposed on
amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign
Lender becomes a party
hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with clause (B)
of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Co-Borrowers with respect to such withholding tax pursuant to
Section 3.01(a)(ii) or (iii).


 


13









 





“Existing Letters of Credit” means those standby letters of credit issued by the L/C
Issuer for the benefit of ISO and certain of its Subsidiaries, all as more fully described on
Schedule 1.01 attached hereto and made a part hereof.




“Facility” has the meaning specified in the introductory paragraph hereto.



“Fair Market Value” means, at any time and with respect to any property of a
Co-Borrower, the sale value that would be realized in an arm’s length sale between an informed and
willing buyer and an informed and willing seller, neither being under a compulsion to buy or sell,
all as determined in good faith by the Board of Directors of said Co-Borrower.



“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



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



“Fee Letter” means the letter agreement, dated October 4, 2011, among the
Co-Borrowers, the Administrative Agent and the Arrangers.



“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Co-Borrowers are resident for tax purposes (including such a Lender
when acting in the capacity of the L/C Issuer). For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.




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



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


 


14









 





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



“GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease Property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



“Guarantors” means, collectively, (a) Xactware Solutions, Inc., a Delaware
corporation; (b) ISO Services, Inc., a Delaware corporation; (c) ISO Claims Services, Inc., a
Delaware
corporation; (d) AIR Worldwide Corporation, a Delaware corporation; (e) Verisk Health, Inc., a
Massachusetts corporation; (f) Interthinx, Inc., a California corporation; (g) Verisk Health
Solutions, Inc., a Delaware corporation; (h) ISO Staff Services, Inc., a Delaware corporation; and
(i) any additional guarantors added pursuant to the terms, conditions, and provisions of
Section 6.12, all on a joint
and several basis.


 


15









 





“Guaranty” means the Amended and Restated Continuing Guaranty made by the Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit
“F” attached hereto and made a part hereof, as said Continuing Guaranty may be from time to
time amended, modified, extended, renewed, substituted, and/or supplemented.



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



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




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




(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




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




(d) all obligations of such Person to pay the deferred purchase price of Property or
services (other than obligations to pay the earn out portion of the purchase price for
Permitted Acquisitions and trade accounts payable in the ordinary course of business);




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




(f) Capitalized Leases and Synthetic Lease Obligations;




(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




(h) all Guarantees of such Person in respect of any of the foregoing
(specifically excluding, with respect to Indebtedness of the Co-Borrowers and their
respective Subsidiaries, any guarantees, endorsements or other contingent obligations owing
to or for the benefit of the ESOP).


 


16









 





For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any Capitalized Leases or Synthetic Lease Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitees” has the meaning specified in Section 10.04(b).



“Indenture” means the existing Senior Notes Indenture dated April 6, 2011 among
Verisk, Wells Fargo Bank, National Association, and the “Guarantors” (as such term is defined
therein), as said Senior Notes Indenture may be from time to time amended, modified, extended,
renewed, replaced, substituted, and/or supplemented.



“Indenture Documents” means any agreements, documents, promissory notes, or
certificates evidencing or executed and delivered in connection with the Indenture, together with
any and all amendments, modifications, extensions, renewals, substitutions, and/or supplements
thereto or thereof.




“Information” has the meaning specified in Section 10.07.



“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Co-Borrowers in
a Committed Loan Notice or such other period that is twelve months or less requested by the
Co-Borrowers and consented to by all the Lenders; provided that:




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




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


 


17









 






(c) no Interest Period shall extend beyond the Maturity Date.



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.




“IP Rights” has the meaning specified in Section 5.18.




“IRS” means the United States Internal Revenue Service.




“ISO” has the meaning specified in the introductory paragraph hereto.



“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Co-Borrowers (or any Subsidiary thereof) or in favor of the L/C Issuer and relating to such
Letter of Credit.



“Joinder” means a joinder entered into by an Eligible Assignee (with the consent of
any party whose consent is required by Section 10.06(b)), and accepted by the
Administrative Agent, in substantially the form of Exhibit “E-3” attached hereto and made a
part hereof or any other form approved by the Administrative Agent.



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



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.


 


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“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.



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



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



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



“Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may not be a commercial letter
of credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.



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



“Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).




“Letter of Credit Fee” has the meaning specified in Section 2.03(h).



“Letter of Credit Sublimit” means an amount equal to $25,000,000.00. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



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


 


19









 





“Loan” means an extension of credit by a Lender to the Co-Borrowers under Article
II in the form of a Committed Loan or a Swing Line Loan.



“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section
2.16, the Fee Letter, and the Guaranty.




“Loan Parties” means, collectively, the Co-Borrowers and each Guarantor.



“London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



“Material Adverse Effect” means a material adverse effect upon (a) the business,
assets, condition (financial or otherwise), performance, properties or operations of Verisk and its
direct and indirect consolidated Subsidiaries, taken as a whole, (b) the ability of the
Co-Borrowers to perform their material obligations and duties under the Loan Documents, or (c) the
ability of the Administrative Agent to enforce the Obligations or to make use of any of the
remedies available to the Administrative Agent under the terms, conditions and provisions of this
Agreement or any of the other Loan Documents.



“Material Domestic Subsidiary” means any Domestic Subsidiary which contributed more
than ten percent (10%) of Consolidated EBITDA of Verisk and its direct and indirect Subsidiaries
for the most recently ended four fiscal quarter period; provided, however, that no
Domestic Subsidiary shall be deemed to be a Material Domestic Subsidiary for the purposes of
compliance with Section 6.12 of this Agreement until the earlier to occur of the following
two events: (a) such Domestic Subsidiary has been included in the annual audited consolidated
results of Verisk for at least nine (9) months and such annual audited consolidated results shall
have been publicly disclosed in Verisk’s annual report on Form 10-K; or (b) the public filing by
Verisk of annual audited financial statements for such Domestic Subsidiary for the most recent
fiscal year, provided that the determination of whether such annual audited
financial statements for such Domestic Subsidiary are prepared and publicly filed shall be at the
sole discretion of Verisk.



“Maturity Date” means October 24, 2016; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



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



“Note” means a promissory note made by the Co-Borrowers, on a joint and several basis,
in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit
“C” attached hereto and made a part hereof.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.


 


20









 





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



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



“Outstanding Amount” means (a) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Co-Borrowers of Unreimbursed Amounts.



“Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the L/C
Issuer in accordance with banking industry rules on interbank compensation, and (b) with respect to
any amount denominated in an Alternative Currency, the rate of interest per annum at which
overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for such day by a
branch or Affiliate of Bank of America in the applicable offshore interbank market for such
currency to major banks in such interbank market.




“Participant” has the meaning specified in Section 10.06(d).




“PBGC” means the Pension Benefit Guaranty Corporation.




“Pension Act” means the Pension Protection Act of 2006.



“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section
412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and,
thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of
ERISA.


 


21









 





“Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by either Co-Borrower or any
ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding
standards under Section 412 of the Code.



“Permitted Acquisition” means any merger, consolidation, or acquisition with or of any
Person which complies with each of the following terms and conditions:



(a) said Person must be in a line of business similar to those in which the Co-Borrowers and
their Subsidiaries are engaged as of the Closing Date, or any related line of business, or a line
of business which is reasonably complimentary or incidental thereto; and



(b) no Default or Event of Default shall exist at the time of, or shall result or be caused
by, such merger, consolidation, or acquisition; and



(c) (i) all of the financial covenants set forth in Section 7.08 of this Agreement
must be complied with on a pro forma combined basis for the then current period and (ii) if, on a
pro forma basis, the Person the subject of such merger, consolidation or acquisition constitutes a
Material Domestic Subsidiary, then as evidence of such compliance, the Co-Borrowers shall have
first delivered to the Administrative Agent a written certificate signed by a Responsible Officer
showing, in reasonable detail, the calculation of the pro-forma Consolidated Funded Debt Leverage
Ratio of Verisk and its direct and indirect Subsidiaries on a consolidated basis, after giving
effect to such merger, consolidation, or acquisition; and



(d) in the event a Co-Borrower is not the surviving Person, the surviving Person shall be a
domestic Person that expressly assumes, by a written agreement satisfactory in form and substance
to the Administrative Agent (which agreement may require, in connection with such assumption, the
delivery of such opinions of counsel (who may be in-house counsel) as the Administrative Agent may
reasonably require), the obligations of the acquired Co-Borrower(s) under the Loan Documents,
including, without limitation, all covenants contained therein, and such successor or acquiring
Person shall succeed to and be substituted for said Co-Borrower(s) with the same effect as if it
had been named herein as a party hereto, provided, however, that no such sale shall
release any Co-Borrower from its obligations and liabilities under this Agreement or any of the
other Loan Documents unless such sale is followed by the complete liquidation of said Co-Borrower
and substantially all the assets of said Co-Borrower immediately following such sale are
distributed to the successor or acquiring Person in such liquidation.


 


22









 





“Permitted Subsidiary Acquisition Indebtedness” means Indebtedness of any Subsidiary
of a Co-Borrower which is:



(a) owed by any Person at the time (i) such Person becomes a Subsidiary of or is merged with
or into a Co-Borrower or a Subsidiary of a Co-Borrower or (ii) a Subsidiary acquires any Property
from such Person and which Indebtedness is expressly assumed by such
Subsidiary at the time of such acquisition; provided that (A) such
Indebtedness was not created, incurred, or assumed by such Person or such Subsidiary in
contemplation of any Permitted Acquisition, (B) in the event such Indebtedness shall be Guaranteed,
such Guarantee shall be unsecured and shall be given by a Co-Borrower, and (C) the principal amount
of such Indebtedness shall not be increased at any time after it is first acquired or assumed, as
applicable, or



(b) incurred
by such Subsidiary to finance or to refinance a Permitted Acquisition; provided
that (i) such Indebtedness shall be incurred substantially simultaneously with the consummation of
such Permitted Acquisition, (ii) the principal amount of such Indebtedness incurred in connection
with such Permitted Acquisition shall not be increased at any time after it is first incurred,
(iii) the principal amount of such Indebtedness (together with any accrued interest thereon and
closing costs relating thereto) shall at no time exceed one hundred percent (100%) of the original
purchase price of such Permitted Acquisition, and (iv) in the event such Indebtedness shall be
Guaranteed, such Guarantee shall be unsecured and shall be given by a Co- Borrower.



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



“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Co-Borrowers or any ERISA Affiliate or
any such Plan to which any Co-Borrower or any ERISA Affiliate is required to contribute on behalf
of any of its employees.




“Platform” has the meaning specified in Section 6.02.



“Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on the day specified in the public
announcement of such change.



“Priority Indebtedness” means, at any time, the sum (without duplication) of (a) all
Indebtedness (other than Indebtedness of the type specified in clauses (b) and (c) of the
definition of Indebtedness, or any Guarantee insofar as it relates to such types of Indebtedness)
of the Co-Borrowers secured by Liens not otherwise permitted by Sections 7.01(a), (b), (c), and
(e) through (k), inclusive, below plus (b) all Indebtedness of the Co-Borrowers’
Subsidiaries owed to any Person other than to a Co-Borrower or to a Wholly Owned Subsidiary, other
than (i) the Guaranty and any Common Guaranty and (ii) any Permitted Subsidiary Acquisition
Indebtedness.



“Private Placement Documents” means any agreements, documents, promissory notes, or
certificates evidencing or executed and delivered in connection with any of the Private Placement
Facilities, together with any and all amendments, modifications, extensions, renewals,
substitutions, and/or supplements thereto or thereof.


 


23









 





“Private Placement Facility” and “Private Placement Facilities” means any of
the existing private placement facilities maintained by the Co-Borrowers as of the Closing Date
with (a) Prudential Capital Group / Prudential Investment Management, Inc., (b) Principal Global
Investors LLC, (c) New York Life Insurance Company, and (d) Aviva Investors North America, Inc., as
any of said private placement facilities may be from time to time amended, modified, extended,
renewed, replaced, substituted, and/or supplemented.



“Private Placement Lender” and “Private Placement Lender” means any of the
lenders under any of the Private Placement Facilities, which lenders, as of the Closing Date, are
(a) Prudential Capital Group / Prudential Investment Management, Inc., (b) Principal Global
Investors LLC, (c) New York Life Insurance Company, and (d) Aviva Investors North America, Inc.



“Property” or “Properties” shall mean any real or personal property, plant,
building, facility, structure, underground storage tank, equipment or unit, or other asset owned,
leased or operated by either Co-Borrower and/or any of its Subsidiaries.




“Public Lender” has the meaning specified in Section 6.02.




“Register” has the meaning specified in Section 10.06(c).



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



“Release” shall mean release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or
into or out of any Property, including the movement of Hazardous Materials through or in the air,
soil, surface water, groundwater or real property.



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



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



“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a
determination of Required Lenders.


 


24









 





“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of
notices given pursuant to Article II, any other officer or employee of the applicable Loan
Party so designated by any of the foregoing officers in a notice to the Administrative Agent. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



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



“Revaluation Date” means, with respect to any Letter of Credit, each of the following:
(a) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each
date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (c) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative Currency, and (d) such additional
dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall
require.



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



“Sharing Agreement” means a reference to that certain Third Amended and Restated
Sharing Agreement dated as of March 28, 2011, executed by and among the Administrative Agent, the
Private Placement Lenders, the “Prudential Noteholders” (as such term is defined therein), the
“Principal Noteholders” (as such term is defined therein), the “NY Life Noteholders” (as such term
is defined therein), the “Aviva Noteholders” (as such term is defined therein), and Wells Fargo
Bank, National Association (pursuant to Joinder Agreement dated as of April 6, 2011), as said Third
Amended and Restated Sharing Agreement may be from time to time amended, modified, extended,
renewed, substituted, and/or supplemented, including, without limitation, by the execution and
delivery of any “Joinder Agreement” (as such term is defined in said Third Amended and Restated
Sharing Agreement).



“Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent or the L/C Issuer may obtain such spot rate from another
financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting
in such
capacity does not have as of the date of determination a spot buying rate for any such
currency; and provided further that the L/C Issuer may use such spot rate quoted on
the date as of which the foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.


 


25









 





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



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



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



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



“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



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


 


26









 





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



“Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000.00 and
(b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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



“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.




“Verisk” has the meaning specified in the introductory paragraph hereto.




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




“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



“Wholly Owned Subsidiary” and “Wholly Owned Subsidiary” shall mean any
Subsidiary or Subsidiaries of either Co-Borrower all of the Equity Interests (other than directors’
qualifying shares but not in excess of the minimum number of shares necessary to satisfy local
ownership legal requirements) of which is/are, at the time as of which any such determination is
being made, owned by either Co-Borrower, either directly or through any other Wholly Owned
Subsidiary or Wholly Owned Subsidiaries.




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




(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document)


 


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shall be construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “hereto,” “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear, (v) any reference to
any law shall include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




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




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



1.04 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of
determining compliance with any covenant (including the computation of any financial covenant)
contained herein, Indebtedness of the Co-Borrowers and their Subsidiaries shall be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on
financial liabilities shall be disregarded.



(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Co-Borrowers
or the Required Lenders shall so request, the Administrative Agent, the Lenders and the
Co-Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the
Co-Borrowers shall provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.



(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of Verisk and its direct and indirect Subsidiaries or to the
determination of any amount for Verisk and its direct and indirect Subsidiaries on a consolidated
basis or any similar reference shall, in each case, be deemed to include each variable interest
entity that Verisk is required to consolidate pursuant to FASB Interpretation No. 46 —
Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if
such variable interest entity were a Subsidiary as defined herein.




 


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1.05 Rounding. Any financial ratios required to be maintained by the Co-Borrowers pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



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



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



1.08 Interpretation and Construction of Exceptions/Carveouts to Article VII Negative
Covenants.



In connection with the exceptions/carveouts to the negative covenants set forth and described
in Article VII of this Agreement, each such exception/carveout shall be available as
described therein independent of, and separate, distinct, and apart from, any other such
exceptions/carveouts, including, without limitation, any other exceptions/carveouts expressly set
forth and described within the same section of said Article VII. Any and all such
exceptions/carveouts which make reference to an aggregate dollar amount (i.e., a “basket”) shall be
deemed to refer to the aggregate dollar amount which the Lenders will permit the Co-Borrowers and
their Subsidiaries to incur or to have incurred and to permit to remain outstanding subsequent to
the Closing Date, however, such aggregate dollar amount (i.e., a “basket”) shall be deemed to be
inclusive of, and not in
addition to, the aggregate dollar amount of each such exception/carevout
which may have been previously incurred and which is currently outstanding as of the Closing Date.




1.09 Additional Alternative Currencies.



(a) The Co-Borrowers and their Subsidiaries may from time to time request that Letters of
Credit be issued in an Alternative Currency; provided that such Alternative
Currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. Any such request shall be subject to the approval of
the Administrative Agent and the L/C Issuer.


 


29









 





(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20
Business Days prior to the desired issuance date of the proposed Letter of Credit (or such other
time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole and
absolute discretion). The Administrative Agent shall promptly notify the L/C Issuer of such
request. The L/C Issuer shall notify the Administrative Agent, not later than 11:00 a.m., ten
Business Days after receipt of such request whether it consents, in its sole and absolute
discretion, to the issuance of Letters of Credit in the requested Alternative Currency.



Any failure by the L/C Issuer to respond to such request within the time period specified in
the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit Letters of
Credit to be issued in such requested Alternative Currency. If the Administrative Agent and the
L/C Issuer consent to the issuance of Letters of Credit in such requested Alternative Currency, the
Administrative Agent shall so notify the Co-Borrowers or the applicable Subsidiary and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional Alternative Currency under this Section 1.08, the
Administrative Agent shall promptly so notify the Co-Borrowers and such Subsidiary.



1.10 Exchange Rates; Currency Equivalents. 




(a) The L/C Issuer shall determine the Spot Rates
as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Outstanding
Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.



(b) Wherever in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be
the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of
such Alternative Currency, with 0.50 of a unit being rounded upward), as determined by the L/C
Issuer.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (hereinafter each such loan shall be referred to as a “Committed
Loan”) to the Co-Borrowers from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided, however, that after giving effect to any Committed Borrowing,
(i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Co-Borrowers may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.


 


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2.02 Borrowings, Conversions and Continuations of Committed Loans.



(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Co-
Borrowers’ irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans,
and (ii) on the requested date of any Borrowing of Base Rate Committed Loans; provided,
however, that if the Co-Borrowers wish to request Eurodollar Rate Loans having an Interest
Period other than one, two, three or six months in duration as provided in the definition of
“Interest Period,” the applicable notice must be received by the Administrative Agent not later
than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or
continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such
request (but in any event on the same Business Day the Administrative Agent receives such notice of
Borrowing, conversion, or continuation) and determine whether the requested Interest Period is
acceptable to all of them. Not later than 11:00 a.m., three Business Days before the requested
date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the
Co-Borrowers (which notice may be by telephone) whether or not the requested Interest Period has
been consented to by all the Lenders. Each telephonic notice by the Co-Borrowers pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Co-Borrowers. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000.00 or a whole multiple of $1,000,000.00 in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion
to Base Rate Committed Loans shall be in a principal amount of $500,000.00 or a whole multiple of
$100,000.00 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Co-Borrowers are requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are
to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Co-Borrowers fail to specify a Type of Committed Loan in a Committed Loan Notice or if the
Co-Borrowers fail to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Co-Borrowers request a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.


 


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(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify (but in any event on the same Business Day the Administrative Agent receives such Committed
Loan Notice) each Lender of the amount of its Applicable Percentage of the applicable Committed
Loans, and if no timely notice of a conversion or continuation is provided by the Co-Borrowers, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office
not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Co-Borrowers in like funds as received by the
Administrative Agent either by (i) crediting the account of the Co-Borrowers on the books of Bank
of America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Co-Borrowers; provided, however, that if, on the date the Committed Loan Notice
with respect to such Borrowing is given by the Co-Borrowers, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the payment in full of any
such L/C Borrowings, and second, shall be made available to the Co-Borrowers as provided
above.



(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



(d) The Administrative Agent shall promptly notify the Co-Borrowers and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Co-Borrowers and the Lenders of any change in the Prime Rate promptly following
the public announcement of such change.



(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.




2.03 Letters of Credit.




(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of the Co-Borrowers or their Subsidiaries, and to
amend or extend Letters of Credit previously issued by it, in accordance with subsection
(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of the
Co-Borrowers or their Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter of
Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the
Co-Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be
a representation by the Co-Borrowers that the L/C Credit Extension so requested complies
with the conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Co-Borrowers’ ability
to obtain Letters of Credit shall be fully revolving, and accordingly the Co-Borrowers may,
during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.


 


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(ii) The L/C Issuer shall not issue any Letter of Credit, if:




(A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date; or




(B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date.




(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material
to it;




(B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $10,000.00;




(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;


 


33









 






(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder;




(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Co-Borrowers or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion; or




(G) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency.




(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




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




(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.



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




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Co-Borrowers delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Co-Borrowers. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address


 


34









 






of
the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested
Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of
a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the
L/C Issuer may require. Additionally, the Co-Borrowers shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or
the Administrative Agent may require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Co-Borrowers and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article
IV shall not then be satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of a
Co-Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of such Letter of Credit.




(iii) If the Co-Borrowers so request in any applicable Letter of Credit Application,
the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (hereinafter each referred to as an
“Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (hereinafter referred to
as the “Non-Extension Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Co-Borrowers shall not be required to make a specific request to the L/C Issuer
for any such extension. Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by reason of the provisions of
clause 
(ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is seven Business
Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Co-Borrowers that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied, and in each such case directing the
L/C Issuer not to permit such extension.


 


35









 






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




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Co-Borrowers and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Co-Borrowers shall reimburse the L/C Issuer in such Alternative
Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that
it will require reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Co-Borrowers shall have notified the L/C Issuer promptly
following receipt of the notice of drawing that the Co-Borrowers will reimburse the L/C
Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the
Co-Borrowers of the Dollar Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 11:00 a.m. on the date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the Co-Borrowers shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount
of such drawing and in the applicable currency. If the Co-Borrowers fail to so reimburse
the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of
the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount
of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (hereinafter referred to as the “Unreimbursed Amount”), and
the amount of such Lender’s Applicable Percentage thereof. In such event, the Co-Borrowers
shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.


 


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(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office
for Dollar-denominated payments in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Co-Borrowers in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer in Dollars.




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




(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Co-Borrowers or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Co-Borrowers of a Committed Loan Notice).
No such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Co-Borrowers to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.




(vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the applicable
Overnight Rate
from time to time in effect, plus any administrative, processing or similar fees
customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.


 


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(d) Repayment of Participations.




(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Co-Borrowers or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof in Dollars and in the same funds
as those received by the Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this
clause (ii) shall survive the payment in full of the Obligations and the termination
of this Agreement.



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




(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




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


 


38









 






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




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




(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Co-Borrowers or any Subsidiary; or




(vi) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Co-Borrowers or any Subsidiary or in the relevant
currency markets generally.



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



(f) Role of L/C Issuer. Each Lender and the Co-Borrowers agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Co-Borrowers hereby assume
all risks of the acts or omissions of any beneficiary or transferee with respect to their use of
any Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Co-Borrowers’ pursuing such rights and remedies as they may have
against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Co-Borrowers
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Co-Borrowers, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Co-Borrowers which the Co-
Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross negligence or the
L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may
accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.


 


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(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Co-Borrowers when a Letter of Credit is issued, (i) the rules of the ISP shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce at the
time of issuance shall apply to each commercial Letter of Credit.



(h) Letter of Credit Fees. The Co-Borrowers shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee
(hereinafter referred to as the “Letter of Credit Fee”) for each Letter of Credit equal to
the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first
Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any
change in the Applicable Rate during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Co-Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee with respect
to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly
basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the
end of each March, June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. In addition, the Co-Borrowers shall pay directly to the L/C Issuer for its
own account, in Dollars, the customary issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.


 


40









 





(j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Co-Borrowers shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Co-Borrowers hereby acknowledge that the
issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the
Co-Borrowers, and that the Co-Borrowers’ business derives substantial benefits from the businesses
of such Subsidiaries.




2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, such agreement being made in reliance upon the agreements of the other Lenders
set forth in this Section 2.04, to make loans (hereinafter each such loan shall be referred
to as a “Swing Line Loan”) to the Co-Borrowers (in Dollars only) from time to time on any
Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and provided, further, that the Borrower shall not use the proceeds of
any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Co-Borrowers may borrow under this
Section 2.04, prepay under Section 2.05, and reborrow under this Section
2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Lender’s Applicable Percentage times the amount of such Swing Line
Loan.



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Co-Borrowers’ irrevocable notice to the Swing Line Lender and the Administrative Agent, which
notice may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000.00, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the
Co-Borrowers. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request of any Lender)
prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Co-Borrowers.


 


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(c) Refinancing of Swing Line Loans.




(i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Co-Borrowers (which hereby irrevocably authorize the Swing Line Lender to
so request on their behalf), that each Lender make a Base Rate Committed Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall be deemed
to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Co-Borrowers with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Committed Loan
Notice available to the Administrative Agent in immediately available funds (and the
Administrative Agent may apply Cash Collateral available with respect to the applicable
Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Co-Borrowers in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.




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


 


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(iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing
or funded participation in the relevant Swing Line Loan, as the case may be. A certificate
of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Co-Borrowers or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Co-Borrowers to repay
Swing Line Loans, together with interest as provided herein.




(d) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.




(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


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(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Co-Borrowers for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.



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




2.05 Prepayments.



(a) Optional. (i) The Co-Borrowers may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Committed Loans in whole or in part without
premium or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Committed Loans;
(B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000.00 or a
whole multiple of $1,000,000.00 in excess thereof; and (C) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000.00 or a whole multiple of $100,000.00 in excess
thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to
be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given
by the Co-Borrowers, the Co-Borrowers shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Subject to Section
2.17, each such prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.




(ii) The Co-Borrowers may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum
principal amount of $100,000.00. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Co-Borrowers, the Co-Borrowers shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein.



(b) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Co-Borrowers shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Co-Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.


 


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2.06 Termination or Reduction of Commitments. The Co-Borrowers may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $10,000,000.00 or any whole multiple of $1,000,000.00 in excess thereof, (iii) the
Co-Borrowers shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.




2.07 Repayment of Loans.



(a) The Co-Borrowers shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.



(b) The Co-Borrowers shall repay each Swing Line Loan on the earlier to occur of (i) the date
which is ten (10) Business Days after such Loan is made and (ii) the Maturity Date.




2.08 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate;
(ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.



(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




(ii) If any amount (other than principal of any Loan) payable by the Co-Borrowers under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


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(iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Co-Borrowers shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



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



2.09 Fees. In addition to certain fees described in subsections (i) and (j) of
Section 2.03:



(a) Commitment Fee. The Co-Borrowers shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.17. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period.
The commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. For purposes of computing the commitment fee, Swing Line Loans shall not be counted
towards or considered to be usage of the Aggregate Commitments.




(b) Other Fees.




(i) The Co-Borrowers shall pay to the Arrangers and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




(ii) The Co-Borrowers shall pay to each Lender on the date hereof an upfront fee in an
amount equal to 12.5 basis points (0.125%) on such Lender’s Commitment. Such upfront fee
shall be payable in full on the Closing Date, shall be fully earned when paid and shall not
be refundable for any reason whatsoever.


 


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2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to
the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Co-Borrowers or for any other reason, the Co-Borrowers or the Lenders determine that (i) the
Consolidated Funded Debt Leverage Ratio as calculated by the Co-Borrowers as of any applicable date
was inaccurate and (ii) a proper calculation of the Consolidated Funded Debt Leverage Ratio would
have resulted in higher pricing for such period, the Co-Borrowers shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the applicable
Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with respect to the
Co-Borrowers under the Bankruptcy Code of the United States, automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. Conversely, if, as a result of any such
restatement or other adjustment which is made and delivered to the Agent within sixty (60) days of
the date said financial statements were originally delivered to the Agent, a proper calculation of
Consolidated Funded Debt Leverage Ratio would have resulted in lower pricing for such period, the
Co-Borrowers shall be entitled to a prompt refund of the amount of the overpayment of interest and
fees for such period. This paragraph shall not limit the rights of the Administrative Agent, any
Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(h)
or 2.08(b) or under Article VIII or elsewhere under this Agreement. The
Co-Borrowers’ obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.




2.11 Evidence of Debt.



(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Co-Borrowers and the interest and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Co-Borrowers hereunder to
pay any amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Co-Borrowers shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.


 


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(b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.




2.12 Payments Generally; Administrative Agent’s Clawback.



(a) General. All payments to be made by the Co-Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Co-Borrowers hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Co-Borrowers
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required by
Section 2.02) and may, in reliance upon such assumption, make available to the Co-Borrowers
a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender
and the Co-Borrowers severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Co-Borrowers to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
Overnight Rate, plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made
by the Co-Borrowers, the interest rate applicable to Base Rate Loans. If the Co-Borrowers and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Co-Borrowers the amount of such interest paid
by the Co-Borrowers for such period. If such Lender pays its share of the applicable Committed
Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s
Committed Loan included in such Committed Borrowing. Any payment by the Co-Borrowers shall be
without
prejudice to any claim the Co-Borrowers may have against a Lender that shall have failed to
make such payment to the Administrative Agent.


 


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(ii) Payments by Co-Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Co-Borrowers prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Co-Borrowers will not make such payment, the Administrative Agent may assume
that the Co-Borrowers have made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Co-Borrowers have not in fact made such payment, then each of
the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the Overnight Rate.



A notice of the Administrative Agent to any Lender or the Co-Borrowers with respect to any
amount owing under this
subsection (b) shall be conclusive, absent manifest error.



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



(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 10.04(c).



(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.


 


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2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Committed Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash
at face value) participations in the Committed Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Committed Loans and other
amounts owing them, provided that:




(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Co-Borrowers pursuant to and in accordance with the express
terms of this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section
2.16, or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to the
Co-Borrowers or any Subsidiary thereof (as to which the provisions of this Section shall
apply).



Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



Notwithstanding any term, condition or provision of this Section 2.13 or any other
provision of this Agreement to the contrary, any payment or other amount received by the L/C Issuer
or the Swing Line Lender, respectively, from cash or deposit account balances used to Cash
Collateralize obligations of a Lender to (A) the L/C Issuer, in accordance with the terms,
conditions, and provisions of Section 2.03(a)(iii)(F), or (B) the Swing Line Lender, in
accordance with the terms, conditions, and provisions of Section 2.04(c)(i), shall be for
the sole benefit of the L/C Issuer and the Swing Line Lender, respectively, and shall not be
subject to the sharing provisions of this Section 2.13.




2.14 Increase in Commitments.



(a) Request for Increase. Provided there exists no Default, upon prior express
written notice to the Administrative Agent (which shall promptly notify the Lenders), the
Co-Borrowers may, from time to time, request an increase in the maximum principal amount of the
Facility by an amount (for all such requests) not exceeding $300,000,000.00 in the aggregate (i.e.,
the amount which would increase the principal amount of the Aggregate Commitments to
$1,000,000,000.00 in the aggregate); provided that (i) any such request for an increase
shall be in a minimum amount of $25,000,000.00, and (ii) the Co-Borrowers may make a maximum of
four (4) such requests. At the time of sending such notice, the Co-Borrowers (in consultation with
the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten (10) Business Days from the date of delivery of
such notice to the Lenders).


 


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(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment. No Lender shall be obligated to increase its Commitment in connection
with any request by the Co-Borrowers pursuant to this Section 2.14.



(c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Co-Borrowers and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase, and subject to the approval of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Co-Borrowers may also invite additional Eligible Assignees to become
Lenders pursuant to a Joinder in form and substance satisfactory to the Administrative Agent and
its counsel.



(d) Effective Date and Allocations. If the Facility is increased in accordance with
this Section, the Administrative Agent and the Co-Borrowers shall determine the effective date
(hereinafter referred to as the “Increase Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Co-Borrowers and the Lenders of the
final allocation of such increase and the Increase Effective Date.



(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Co-Borrowers shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (ii) in the case of the Co-Borrowers,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct on and
as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.14, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default exists. The Co-Borrowers shall prepay any Loans
outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any
revised Applicable Percentages arising from any nonratable increase in the Commitments under this
Section 2.14.



(f) Conflicting Provisions. This Section 2.14 shall supersede any provisions
in Sections 2.13 or 10.01 to the contrary.




 


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2.15 Joint and Several Liability.



The Co-Borrowers hereby acknowledge, covenant and agree that all Obligations, liabilities and
covenants made, incurred and undertaken by them under this Agreement and the other Loan Documents
are on a joint and several basis, including, without limitation, all obligations to pay principal,
interest, fees, costs, and expenses.




2.16 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Co-Borrowers
shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request
of the Administrative Agent, the L/C Issuer or the Swing Line Lender, the Co-Borrowers shall
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
Exposure (after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by
the Defaulting Lender).



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Co-Borrowers, and to the extent provided by any Lender, such
Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and
agrees to maintain, a first priority security interest in all such cash, deposit accounts and all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be
applied pursuant to Section 2.16(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Co-Borrowers or the
relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide
to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections
2.03, 2.04, 2.05, 2.17 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein. 


 


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(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vii))) or (ii) the Administrative Agent’s good
faith
determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.16 may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



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




(i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the Co-Borrowers may request (so long as no Default or Event of
Default exists), to the funding of any Loan in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the
Co-Borrowers, to be held in a non-interest bearing deposit account and released in order to
satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to
the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a
result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C
Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Co-Borrowers as a result
of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations
under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if (x) such payment is a payment of
the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting
Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were
made at a time when the conditions set forth in Section 4.02 were satisfied or
waived, such payment
shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any
Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each
Lender irrevocably consents hereto.


 


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(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Co-Borrowers shall not be required to pay any
such fee that otherwise would have been required to have been paid to that Defaulting
Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided
in Section 2.03(h).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (x) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (y) the aggregate obligation of each non-Defaulting Lender to acquire, refinance
or fund participations in Letters of Credit and Swing Line Loans shall not exceed the
positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.



(b) Defaulting Lender Cure. If the Co-Borrowers, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be necessary to cause the
Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without
giving effect to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Co-Borrowers while that Lender was a Defaulting
Lender; and provided, further, that except to the extent otherwise expressly agreed
by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.


 


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ARTICLE III.




TAXES, YIELD PROTECTION AND ILLEGALITY





3.01 Taxes.



(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Co-Borrowers hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the
Co-Borrowers or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Co-Borrowers or the Administrative
Agent, as the case may be, upon the basis of the information and documentation to be delivered
pursuant to subsection (e) below.




(ii) If the Co-Borrowers or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent or the Co-Borrowers,
as the case may be, shall withhold or make such deductions as are determined by the
Administrative Agent or the Co-Borrowers, as the case may be, to be required based upon the
information and documentation it has received pursuant to subsection (e) below, (B)
the Administrative Agent or the Co-Borrowers, as the case may be, shall timely pay the full
amount withheld or deducted to the relevant Governmental Authority in accordance with the
Code, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Co-Borrowers shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to
the sum it would have received had no such withholding or deduction been made.



(b) Payment of Other Taxes by the Co-Borrowers. Without limiting the provisions of
subsection (a) above, the Co-Borrowers shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.



(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a)
or (b) above, the Co-Borrowers shall, and do hereby, indemnify the Administrative Agent, each
Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
withheld or deducted by the Co-Borrowers or the Administrative Agent or paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, on or with respect to any payment by or
on account of any obligation of the Co-Borrowers hereunder or otherwise with respect to any Loan
Document, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The Co-Borrowers shall also, and does hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required
by clause (ii) of this subsection. A certificate as to the amount of any such payment
or liability delivered to the Co-Borrowers by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive absent manifest error.


 


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(ii) Without limiting the provisions of subsection (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify the Co-Borrowers and the
Administrative Agent, and shall make payment in respect thereof within 10 days after demand
therefor, against any and all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges and disbursements of any
counsel for the Co-Borrowers or the Administrative Agent) incurred by or asserted against
the Co-Borrowers or the Administrative Agent by any Governmental Authority as a result of
the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result
of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered
by such Lender or the L/C Issuer, as the case may be, to the Co-Borrowers or the
Administrative Agent pursuant to subsection (e). Each Lender and the L/C Issuer
hereby authorizes the Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any
other Loan Document against any amount due to the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the replacement of,
a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all other Obligations.



(d) Evidence of Payments. Upon request by the Co-Borrowers or the Administrative
Agent, as the case may be, after any payment of Taxes by the Co-Borrowers or by the Administrative
Agent to a Governmental Authority as provided in this Section 3.01, the Co-Borrowers shall
deliver to the Administrative Agent or the Administrative Agent shall deliver to the Co-Borrowers,
as the case may be, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of any return required by Laws to report such payment or
other evidence of such payment reasonably satisfactory to the Co-Borrowers or the Administrative
Agent, as the case may be.



(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Co-Borrowers and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Co-Borrowers or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Co-Borrowers or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the
Co-Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in the applicable jurisdiction.


 


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(ii) Without limiting the generality of the foregoing, if the Co-Borrowers are resident
for tax purposes in the United States,




(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Co-Borrowers and the Administrative
Agent, at the request of the Co-Borrowers or the Administrative Agent, respectively,
executed originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the
Co-Borrowers or the Administrative Agent as will enable the Co-Borrowers or the
Administrative Agent, as the case may be, to determine whether or not such Lender is
subject to backup withholding or information reporting requirements; and




(B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Co-Borrowers and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Co-Borrowers or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




(I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




(II) executed originals of Internal Revenue Service Form W-8ECI,




(III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




(IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Co-Borrowers within the meaning of section 881(c)(3)(B)
of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or


 


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(V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit the Co-Borrowers or the
Administrative Agent to determine the withholding or deduction required to
be made.




(iii) Each Lender shall promptly (A) notify the Co-Borrowers and the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (B) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any jurisdiction that the Co-Borrowers or the
Administrative Agent make any withholding or deduction for taxes from amounts payable to
such Lender.




(iv) The Administrative Agent shall deliver to the Co-Borrowers, when reasonably
requested by the Co-Borrowers, a properly completed and executed applicable IRS form to
permit the Co-Borrowers to determine (A) whether or not payments made hereunder or under any
other Loan Document are subject to U.S. Federal withholding tax, (B) if applicable, the
required rate of withholding or deduction of such tax, and (C) the Administrative Agent’s
entitlement to any available exemption from, or reduction of, U.S. federal withholding tax
in respect of payments to be made to the Administrative Agent by a Loan Party pursuant to
this Agreement or any other Loan Document.



(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund (or a credit against its future tax liability in lieu of
a refund) of any Taxes or Other Taxes as to which it has been indemnified by the Co-Borrowers or
with respect to which the Co-Borrowers has paid additional amounts pursuant to this Section
3.01, it shall pay to the Co-Borrowers an amount equal to such refund or credit in lieu thereof
(but only to the extent of indemnity payments made, or additional amounts paid, by the Co-Borrowers
under this Section with respect to the Taxes or Other Taxes giving rise to such refund or credit in
lieu thereof), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender
or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund or credit in lieu thereof),
provided that the Co-Borrowers, upon the request of the Administrative Agent, such Lender
or the L/C Issuer, agrees to repay the amount paid over to the Co-Borrowers (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority and delivers to the
Co-Borrowers evidence reasonably satisfactory to such Loan Parties of such repayment. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer
to make available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Co-Borrowers or any other Person.


 


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3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Co-
Borrowers through the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loans shall be
suspended until such Lender notifies the Administrative Agent and the Co-Borrowers that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the
Co-Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert (a) all Eurodollar Rate Loans of such Lender and (b) all Base Rate Loans
of such Lender as to which the interest rate is determined with reference to the Eurodollar Rate to
Base Rate Loans as to which the interest rate is not determined with reference to the Eurodollar
Rate, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans or Base Rate Loans. Notwithstanding the foregoing
to the contrary and despite the illegality for such a Lender to make, maintain or fund Eurodollar
Rate Loans or Base Rate Loans as to which the interest rate is determined with reference to the
Eurodollar Rate, that Lender shall remain committed to make Base Rate Loans and shall be entitled
to recover interest thereon at the Base Rate. Upon any such prepayment or conversion, the
Co-Borrowers shall also pay accrued interest on the amount so prepaid or converted.



3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan or in connection with a Base Rate Loan, or (c) the
Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan
or in connection with a Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding or maintaining such Loan, the Administrative Agent will promptly so notify
the Co-Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans and Base Rate Loans as to which the interest rate is determined with
reference to the Eurodollar Rate shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice; provided that any
Eurodollar Rate Loan outstanding prior to the giving of such notice may remain outstanding after
the giving of such notice until the end of the then applicable Interest Period with respect thereto
(without giving effect to any subsequent continuation or conversion), unless such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans or Base Rate Loans for the remaining
duration of such Interest Period. Upon receipt of such notice, the Co-Borrowers may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans as to which the interest rate is not determined with reference to the
Eurodollar Rate in the amount specified therein.


 


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3.04 Increased Costs.




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




(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer;




(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or




(iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan),
or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or
the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of
such Lender or the L/C Issuer, the Co-Borrowers will pay to such Lender or the L/C Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as
the case may be, for such additional costs incurred or reduction suffered.



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



(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section
and delivered to the Co-Borrowers shall be conclusive absent manifest error. The Co-Borrowers
shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


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(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Co-Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant to
the foregoing provisions of this Section for any increased costs incurred or reductions suffered
more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be,
notifies the Co-Borrowers of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of retroactive effect
thereof).



(e) Reserves on Eurodollar Rate Loans. The Co-Borrowers shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Co-Borrowers shall
have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



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



(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



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



(c) any failure by the Co-Borrowers to make payment of any drawing under any Letter of Credit
(or interest due thereon) denominated in an Alternative Currency on its scheduled due date or any
payment thereof in a different currency; or


 


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(d) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Co-Borrowers pursuant to Section 10.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Co-Borrowers shall also pay any
customary administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Co-Borrowers to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.




3.06 Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Co-Borrowers are required to pay any additional amount to any
Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section
3.02, then such Lender or the L/C Issuer shall, as applicable, 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 or the L/C Issuer, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C
Issuer, as the case may be. The Co-Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Co-Borrowers is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Co-Borrowers may replace such Lender in accordance with Section 10.13.



3.07 Survival. All of the Co-Borrowers’ obligations under this Article III shall
survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent on the Closing Date:



(a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent and each of the Lenders:




(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Co-Borrowers;


 


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(ii) a Note executed by the Co-Borrowers in favor of each Lender requesting a Note;




(iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




(iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Co-Borrowers and the Guarantors is validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect;




(v) a favorable opinion of McCarter & English, LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set forth in
Exhibit “G” attached hereto and made a part hereof and such other matters concerning
the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;




(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




(vii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the
Consolidated Funded Debt Leverage Ratio as of the last day of the fiscal quarter of the
Co-Borrowers ended on June 30, 2011;




(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Co-Borrowers ended on June 30, 2011, signed by a Responsible Officer of the
Co-Borrowers;


 


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(ix) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect; and




(x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.




(b) Any fees required to be paid on or before the Closing Date shall have been paid.



(c) Unless waived by the Administrative Agent, the Co-Borrowers shall have paid (a) all
reasonable actual fees, charges and disbursements of counsel to the Administrative Agent and the
Arrangers (directly to such counsel if requested by the Administrative Agent) to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements
incurred or to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the Co-Borrowers and
the Administrative Agent) and (b) all reasonable actual due diligence expenses (not to exceed
$10,000.00 without the Co-Borrowers’ prior written consent) incurred by the Administrator Agent and
the Arrangers, in connection with the syndication of the credit facilities provided for herein and
the preparation, negotiation, execution, and delivery of the Loan Documents; provided,
however, the fees paid to counsel to the Administrative Agent and the Arrangers shall in no
event exceed the amount set forth in the Commitment Letter.



Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



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



(a) The representations and warranties of the Co-Borrowers and each other Loan Party contained
in Article V (other than those set forth and contained in Sections 5.05(c) and
5.06) or any other Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on and as of the date of
such Credit Extension, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.


 


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



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



Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by the Co-Borrowers shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES





Each Co-Borrower represents and warrants to the Administrative Agent and the Lenders that:



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



5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any material Contractual Obligation to which such Person is a party or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
Property is subject; or (c) violate any Law.



5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with the execution, delivery or performance by any Loan Party
of this Agreement or any other Loan Document and, except as set forth on Schedule 5.03, no
consent of any other Person is required in connection with the execution, delivery or performance
by any Loan Party of this Agreement or any other Loan Document except any such consent the failure
of which to obtain could not reasonably be expected to have a Material Adverse Effect.


 


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5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against
each Loan Party that is party thereto in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights
generally and subject to general principals of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).




5.05 Financial Statements; No Material Adverse Effect.



(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of the Co-Borrowers and their
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Co-Borrowers and their Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.



(b) The unaudited consolidated balance sheets of Verisk and its direct and indirect
Subsidiaries on a consolidated basis dated June 30, 2011, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that
date (i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material
respects the financial condition of Verisk and its direct and indirect Subsidiaries on a
consolidated basis as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments. Schedule 5.05 sets forth all material indebtedness and
other liabilities, direct or contingent, of the Co-Borrowers and their consolidated Subsidiaries as
of the date of such financial statements, including liabilities for taxes, material commitments and
Indebtedness.



(c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Co-Borrowers, threatened in writing, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Co-Borrowers or any of their Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as
specifically disclosed in Schedule 5.06, either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse Effect.



5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.


 


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5.08 Ownership of Property; Liens. Each of the Co-Borrowers and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in, all Property
necessary or used in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The Property of the Co-Borrowers and their Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01.



5.09 Environmental Compliance. The Co-Borrowers and their Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof the Co-Borrowers have
reasonably concluded that, except as specifically disclosed in Schedule 5.09, such
Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



5.10 Insurance. The properties of the Co-Borrowers and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Co-Borrowers, in such
amounts (after giving effect to any self-insurance compatible with the following standards), with
such deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where any Co-Borrower or the applicable
Subsidiary operates.



5.11 Taxes. The Co-Borrowers and their Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Co-Borrowers or any Subsidiary that would, if made, have a Material Adverse Effect. Neither
any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.




5.12 ERISA Compliance.



(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has received a favorable determination letter from
the Internal Revenue Service to the effect that the form of such Plan is qualified under Section
401(a) of the Code and the trust related thereto has been determined by the Internal Revenue
Service to be exempt from federal income tax under Section 501(a) of the Code, or an application
for such a letter is currently being processed by the Internal Revenue Service. To the best
knowledge of the Co-Borrowers, nothing has occurred that would prevent or cause the loss of such
tax-qualified status.


 


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(b) There are no pending or, to the best knowledge of the Co-Borrowers, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to any
Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.



(c) (i) No ERISA Event has occurred, and neither the Co-Borrowers nor any ERISA Affiliate is
aware of any fact, event or circumstance that could reasonably be expected to constitute or result
in an ERISA Event with respect to any Pension Plan; (ii) the Co-Borrowers and each ERISA Affiliate
has met all applicable requirements under the Pension Funding Rules in respect of each Pension
Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been
applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the
funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher
and neither the Co-Borrowers nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for any such plan to drop
below 60% as of the most recent valuation date; (iv) neither the Co-Borrowers nor any ERISA
Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there
are no premium payments which have become due that are unpaid; (v) neither the Co-Borrowers nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section
4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof
nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be
expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any
Pension Plan.



(d) Neither the Co-Borrowers nor any ERISA Affiliate maintains or contributes to, or has any
unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan
other than (i) on the Closing Date, those listed on Schedule 5.12 attached hereto and (ii)
thereafter, Pension Plans not otherwise prohibited by this Agreement.



5.13 Subsidiaries; Equity Interests. The Co-Borrowers have no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear
of all Liens. The Co-Borrowers have no equity investments in any other corporation or entity other
than those specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding
Equity Interests in the Co-Borrowers have been validly issued and are fully paid and nonassessable.




5.14 Margin Regulations; Investment Company Act.



(a) The Co-Borrowers are not engaged and will not engage, principally or as one of their
important activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



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


 


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5.15 Disclosure. The Co-Borrowers have disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which they or any
of their Subsidiaries is subject, and all other matters known to them, that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other information furnished (whether in writing or orally) by
or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Loan Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the
Co-Borrowers represent only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time (it being recognized that projections to future events are
not to be viewed as facts and that the actual results during the period or periods covered by any
projections may materially differ from the projected results).



5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



5.17 Taxpayer Identification Number. The Co-Borrowers’ true and correct U.S. taxpayer
identification numbers are set forth on Schedule 10.02.



5.18 Intellectual Property; Licenses, Etc. The Co-Borrowers and their Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (hereinafter
collectively referred to as the “IP Rights”) that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of any other Person
except where the failure to own or possess the right to use such IP Rights, either individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Co-Borrowers, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be employed, by the
Co-Borrowers or any Subsidiary infringes upon any rights held by any other Person except where such
infringement, either individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. Except as specifically disclosed in Schedule 5.18, no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge of the Co-Borrowers,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


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ARTICLE VI.

AFFIRMATIVE COVENANTS




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



6.01 Financial Statements.Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



(a) as soon as available, but in any event within 120 days after the end of each fiscal year
of Verisk (commencing with the fiscal year ended December 31, 2011), a consolidated balance sheet
of Verisk and its direct and indirect Subsidiaries on a consolidated basis as at the end of such
fiscal year, and the related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, such consolidated statements to be audited and accompanied by a report and
opinion of an independent certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit; and



(b) as soon as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of Verisk (commencing with the fiscal quarter ended
September 30, 2011), a consolidated balance sheet of Verisk and its direct and indirect
Subsidiaries on a consolidated basis as at the end of such fiscal quarter, the related consolidated
statements of income or operations for such fiscal quarter and for the portion of Verisk’s fiscal
year then ended, and the related consolidated statements of changes in shareholders’ equity, and
cash flows for the portion of Verisk’s fiscal year then ended, in each case setting forth in
comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated statements to be certified by the chief executive officer, chief financial
officer, treasurer or controller of Verisk as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of Verisk and its direct and indirect Subsidiaries
on a consolidated basis in accordance with GAAP, subject only to normal year-end audit adjustments.



As to any information contained in materials furnished pursuant to Section 6.02(d),
the Co-Borrowers shall not be separately required to furnish such information under clauses (a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Co-Borrowers to furnish the information and materials described in clauses (a) and (b)
above at the times specified therein.



6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



(a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), to the extent obtainable with commercially reasonable efforts, a certificate of their
independent certified public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any Default under the
financial covenants set forth and contained in Section 7.08 or, if any such Default shall
exist, stating the nature and status of such event;


 


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(b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended September 30, 2011), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of Verisk;



(c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of the Co-Borrowers by independent accountants
in connection with the accounts or books of the Co-Borrowers or any Subsidiary, or any audit of any
of them;



(d) promptly after the same are available, copies of each report, proxy or financial statement
or other report or communication sent to the stockholders or bondholders of the Co-Borrowers, and
copies of all annual, regular, periodic and special reports and registration statements which the
Co-Borrowers may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934 and the Securities Act of 1933, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;



(e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



(f) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof, excluding routine comment letters from the SEC
regarding (i) registration statements that the Co-Borrowers have previously filed or may file with
the SEC under the Securities Act of 1933 and (ii) periodic and other reports that the Co-Borrowers
may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934;



(g) not later than five Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of all notices, requests and other documents (including amendments,
waivers and other modifications) so received under or pursuant to any Private Placement Document
regarding or related to any breach or default by any party thereto or any other event that could
materially impair the value of the interests or the rights of any Loan Party or otherwise have a
Material Adverse Effect and, from time to time upon request by the Administrative Agent, such
information and reports regarding the Private Placement Documents as the Administrative Agent may
reasonably request; and



(h) promptly, such additional information regarding the business, financial or corporate
affairs of the Co-Borrowers or any Subsidiary, or compliance with the terms of the Loan Documents,
as the Administrative Agent or any Lender may from time to time reasonably request.


 


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Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Co-Borrowers post such documents, or provides a link thereto
on the Co-Borrowers’ website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the Co-Borrowers’ behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Co-Borrowers shall deliver paper copies of such documents to the Administrative Agent
or any Lender that requests the Co-Borrowers to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Co-Borrowers shall notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Co-Borrowers shall be required to provide paper copies of
the Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Co-Borrowers with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.



Each Co-Borrower hereby acknowledges that (a) the Administrative Agent and the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Co-Borrowers hereunder (hereinafter collectively referred to as “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic
system (hereinafter referred to as the “Platform”) and (b) certain of the Lenders
(hereinafter each referred to as a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Co-Borrowers or their Affiliates, or
the respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. Each of the Co-Borrowers
hereby agrees that, so long as said Co-Borrower is the issuer of any outstanding debt or equity
securities that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities, (w) all Borrower Materials that are to be made available
to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Co-Borrowers shall be deemed to have authorized the Administrative
Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Co-Borrowers or their securities
for purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not
designated “Public Side Information.” Notwithstanding the foregoing to the contrary, the
Co-Borrowers shall be under no obligation to mark any Borrower
Materials “PUBLIC.”


 


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6.03 Notices. Promptly following a Responsible Officer’s having knowledge thereof, notify the
Administrative Agent (who, in turn, will notify each other Lender):




(a) of the occurrence of any Default;



(b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of any Co-Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Co-Borrower or any Subsidiary and any Governmental Authority;
or (iii) the commencement of, or any material adverse development in, any litigation or proceeding
affecting any Co-Borrower or any Subsidiary, including pursuant to any applicable Environmental
Laws;




(c) of the occurrence of any ERISA Event; and



(d) of any material change in accounting policies or financial reporting practices by any
Co-Borrower or any Subsidiary, including any determination by any Co-Borrower referred to in
Section 2.10(b).



Each notice pursuant to this Section 6.03 (other than any notice pursuant to
Section 6.03(e)) shall be accompanied by a statement of a Responsible Officer of the
Co-Borrowers setting forth details of the occurrence referred to therein and stating what action
the Co-Borrowers have taken and propose to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its Property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness, except where, in regard to the matters described in clauses (a),
(b) and (c) above, the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being maintained by such
Co-Borrower or such Subsidiary, or the failure to make payment could not reasonably be expected to
have a Material Adverse Effect.



6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect each Co-Borrower’s and each Material Domestic Subsidiary’s legal existence and good standing
under the Laws of the jurisdiction of its organization except in a transaction permitted by
Section 7.03 or Section 7.04; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.


 


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6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted in the reasonable judgment of the Co-Borrowers; and (b)
make all necessary repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect.



6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business against loss or damage of the
kinds customarily insured against by Persons engaged in the same or similar business, of such types
and in such amounts (after giving effect to any self-insurance compatible with the following
standards) as are customarily carried under similar circumstances by such other Persons.



6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to them or to their business or Property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of such Co-Borrower or such Subsidiary,
as the case may be; and (b) maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory jurisdiction over such
Co-Borrower or such Subsidiary, as the case may be.



6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Administrative Agent and Lenders so long as no Event of
Default exists, and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Co-Borrowers; provided,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Co-Borrowers at any time during normal business hours and without advance
notice.



6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital,
acquisitions and other general corporate purposes not in contravention of any Law or of any Loan
Document.


 


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6.12 Additional Guarantors. Notify the Administrative Agent at the time that any Person
becomes a Material Domestic Subsidiary, and promptly thereafter (and in any event within 30 days of
the most recently ended fiscal quarter), cause such Person to (a) become a Guarantor by executing
and delivering to the Administrative Agent a counterpart of the Guaranty
or such other document as the Administrative Agent shall reasonably deem appropriate for such
purpose and (b) deliver to the Administrative Agent documents of the types referred to in
clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel (who
may be in-house counsel) to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in the foregoing
clause (a)), all in form, content and scope reasonably satisfactory to the Administrative
Agent.




6.13 Pari Passu Status.



Cause the Obligations to rank at least pari passu with all other present and future unsecured
Indebtedness of such Co-Borrower and its Subsidiaries.




6.14 Private Placement Facilities.



Provide the Administrative Agent with copies of any and all amendments, modifications,
restatements, replacements, extensions, renewals, and supplements to the Private Placement
Documents occurring after the Closing Date, promptly upon their full execution and delivery.




6.15 Most Favored Lender Status.



In the event any amounts are outstanding under any of the Private Placement Facilities at such
time, and with respect to the terms and provisions of the Private Placement Documents as in effect
on the Closing Date, deem this Agreement to be automatically amended (such amendment to be
effective as of the date of the applicable incurrence, creation, assumption or amendment or
modification) to include the representations, warranties, covenants and/or event of default
provisions of the applicable Private Placement Documents (or amendment or modification thereof), in
the event and only to the extent (i) Sections 6A(1) (Consolidated Interest Coverage Ratio), 6A(2)
(Consolidated Funded Debt Leverage Ratio), 6G (Limitations on Liens and Encumbrances), or 6I
(Guarantees) of the Private Placement Facilities are more favorable to a Private Placement Lender
than, or are in addition to, those already set forth and contained in this Agreement and the other
Loan Documents or (ii) a security interest is granted pursuant to Section 6C of the Private
Placement Facilities; provided, however, that, so long as no Default or Event of
Default shall then exist, any such amendment of this Agreement shall be deemed (i) to terminate
automatically upon (a) the repayment in full and termination of the Private Placement Facilities or
(b) the effective date of the deletion of such more favorable provisions in respect of such Private
Placement Facilities pursuant to the terms thereof or (ii) to be amended automatically and in like
manner and effect upon the effectiveness of any amendment of such more favorable provisions in
respect of the Private Placement Facilities pursuant to the terms thereof. Within ten (10)
Business Days thereafter, the Co-Borrowers shall deliver a written conforming amendment to this
Agreement and other Loan Document, or new loan document, as applicable. Prior to the execution and
delivery of such amendments or other documents by the Co-Borrowers, this Agreement shall be deemed
to contain each such more favorable (or, as the case may be, such additional) representation,
warranty, covenant and/or event of default provision for purposes of determining the rights and
obligations hereunder.


 


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ARTICLE VII.

NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Co-Borrower shall, nor shall it permit any Subsidiary to, directly or indirectly:



7.01 Liens.Create, incur, assume or suffer to exist any Lien upon any of its Property or
revenues, whether now owned or hereafter acquired, other than the following:




(a) Customary Permitted Liens;



(b) Liens in existence on the date hereof as set forth on Schedule 7.01 attached
hereto and made a part hereof and any extensions, renewals, or replacements thereof,
provided that (i) the aggregate principal amount of the Indebtedness secured by
such Lien(s) immediately prior to such extension, renewal, or replacement is not increased or the
maturity thereof changed and (ii) such Lien(s) is not extended to any other Property in violation
of this Agreement;



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



(d) Liens in favor of such Co-Borrower or any Wholly Owned Subsidiary on Property of a
Subsidiary to secure obligations of such Subsidiary to such Co-Borrower or to a Wholly Owned
Subsidiary;



(e) any attachment or judgment Lien, unless the judgment it secures shall not, within thirty
(30) days after the entry thereof, have been discharged or execution thereof stayed pending appeal,
or shall not have been discharged within thirty (30) days after the expiration of any such stay,
provided that the aggregate amount of such attachments or judgment Liens shall not
secure obligations in excess of $20,000,000.00 at any time;



(f) Liens in respect of Permitted Subsidiary Acquisition Indebtedness; provided
that (i) each such Lien (A) shall be created substantially simultaneously with the
acquisition of the related Property or Properties or (B) shall have existed on any Property of a
Person (1) at the time such Person becomes a Subsidiary of or is merged with or into such
Co-Borrower or a Subsidiary of such Co-Borrower or (2) at the time a Subsidiary acquires such
Property from such Person, and, in the case of each of the foregoing clauses (1) and (2),
such Lien shall not have been created in contemplation of any Permitted Acquisition, and (ii) no
such Lien at any time shall encumber any Property or Properties other than the related Property or
Properties financed by such Permitted Subsidiary Acquisition Indebtedness and the proceeds thereof.
For the avoidance of doubt, in the event that a Permitted Acquisition is consummated as a purchase
of Equity Interests or a similar transaction, the pledge of stock or other Equity Interests
acquired in such Permitted Acquisition to secure the related Permitted Subsidiary Acquisition
Indebtedness shall be permitted;


 


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(g) Liens provided for in equipment leases (including financing statements and undertakings to
file the same), provided that such Liens are limited to the equipment subject to
such leases, accessions thereto and the proceeds thereof;



(h) Liens in or upon and any right of offset against, moneys, deposit balances, security or
other Property, or interests therein, held or received by or for or left in the possession of any
lender (or any affiliate of such lender) in connection with working capital facilities, lines of
credit, term loans or other credit facilities entered into in the ordinary course of business;
provided, however, that in no event shall (i) any Co-Borrower be subject to a
minimum or compensating balance or similar arrangement or arrangement requiring it to maintain
minimum cash funds or deposits with such lender or lenders or (ii) any Co-Borrower or any
Subsidiary maintain in all of its respective accounts with all such lenders, at any time, overnight
cleared cash balances in demand deposit accounts that are subject to set-off rights, in excess of
$5,000,000.00 in the aggregate for all such accounts of any Co-Borrower or any such Subsidiary,
respectively, as the case may be (in each case other than, for the avoidance of doubt, any such
balances held in commercial paper or money market funds);



(i) Liens securing Indebtedness or other obligations to any counterparty under repurchase or
securities loan agreements;



(j) Liens existing solely with respect to cash or deposit account balances used to Cash
Collateralize obligations of a Lender to (i) the L/C Issuer, in accordance with the terms,
conditions, and provisions of Section 2.03(a)(iii)(F) or (ii) the Swing Line Lender, in
accordance with the terms, conditions, and provisions of Section 2.04(c)(i);




(k) Liens created by this Agreement or any other Loan Document; and



(l) Liens in respect of Priority Indebtedness permitted under Section 7.02; provided
that such Liens do not secure Indebtedness owing by such Co-Borrower or any of its Subsidiaries in
respect of (i) any of the Private Placement Facilities, (ii) any other private placement or note
purchase facility or facilities or (iii) any senior credit facility or facilities (including,
without limitation, the Facility).



If, notwithstanding the prohibitions contained in this Section 7.01, a Co-Borrower
shall, or shall permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien other than those expressly permitted by clauses (a) through (l) above, then such
Co-Borrower shall make or cause to be made effective provision whereby the Obligations shall be
secured equally and ratably with any and all other obligations secured by any such Lien, such
security to be pursuant to agreements reasonably satisfactory to the Administrative Agent and the
Lenders and, in any such case, the Administrative Agent and the Lenders shall have the benefit, to
the fullest extent that, and with such priority as, they may be entitled under applicable Laws, of
an equitable Lien on such Property. Such violation of this Section 7.01 shall, in any
event, constitute an Event of Default, whether or not provision is made for an equal and ratable
Lien pursuant to this Section 7.01.


 


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7.02 Priority Indebtedness; Permitted Subsidiary Acquisition Indebtedness. Create, incur,
assume or suffer to exist (a) any Priority Indebtedness in excess at any time of an amount equal to
seven and one-half percent (7.5%) of Assets at such time or (b) any Permitted Subsidiary
Acquisition Indebtedness in an aggregate principal amount in excess of
$500,000,000.00 outstanding at any time.



7.03 Fundamental Changes. Merge, dissolve, liquidate, wind-up, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person or, with respect to a Co-Borrower, change its structure as a corporation, except that, so
long as no Default exists or would result therefrom,




(a) the Co-Borrowers and their Subsidiaries may consummate Permitted Acquisitions;



(b) any Subsidiary may merge with (i) a Co-Borrower, provided that such
Co-Borrower shall be the continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that when any Guarantor is merging with another Subsidiary, the
Guarantor shall be the continuing or surviving Person; and



(c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to a Co-Borrower or to another Subsidiary; provided that
if the transferor in such a transaction is a Guarantor, then the transferee must either be a
Co-Borrower or a Guarantor.



7.04 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:




(a) any Subsidiary may Dispose of assets to a Co-Borrower or any Subsidiary of a Co-Borrower;



(b) any Co-Borrower or any Subsidiary may Dispose of inventory in the ordinary course of its
business (including the Disposition of obsolete inventory);



(c) any Co-Borrower or any Subsidiary may Dispose of assets that, in its good faith,
reasonable judgment, have no further useful or productive capacity, are fully used or depreciated,
are obsolete or are no longer necessary or productive in the ordinary course of its business;



(d) the Co-Borrowers or any Subsidiary may Dispose of assets other than as set forth in the
preceding clauses (a) through (c) and the succeeding clauses (e), (f), and (g);
provided that (i) such assets sold in any calendar year shall not, in the aggregate,
account for more than twenty percent (20%) of Consolidated EBITDA or more than twenty percent (20%)
of the total revenues of Verisk and its direct and indirect Subsidiaries, on a consolidated basis,
for the prior calendar year, and (ii) as of any date of determination, such assets sold during the
term of this Agreement shall not, in the aggregate, account for more than forty percent (40%) of
Consolidated EBITDA or more than forty percent (40%) of the total revenues of Verisk and its direct
and indirect Subsidiaries, on a consolidated basis, in each case on a cumulative basis from June
30, 2011 through the most recently completed fiscal quarter for which financial statements are
available;


 


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(e) the Co-Borrowers and their Subsidiaries may enter into and consummate transactions
permitted by Section 7.03;



(f) any Co-Borrower or any Subsidiary may grant non-exclusive licenses or sublicenses of
rights or interests in intellectual property to third parties in the ordinary course of its
business; and



(g) any Co-Borrower or any Subsidiary may lease and sublease Property to other Persons in the
ordinary course of its business.



7.05 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Co-Borrowers and their Subsidiaries on the
date hereof or any business substantially related, reasonably complimentary or incidental thereto.



7.06 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of a Co-Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to such Co-Borrower or such Subsidiary as would be
obtainable by such Co-Borrower or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate, other than (a) pursuant to agreements in
existence on the date hereof and (b) Investments.



7.07 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.




7.08 Financial Covenants.



(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of Verisk to be less than 3.0 -to- 1.0.



(b) Consolidated Funded Debt Leverage Ratio. Permit the Consolidated Funded Debt
Leverage Ratio at any time during any period of four fiscal quarters of Verisk to be greater than
3.25 -to- 1.0.




7.09 Restricted Payments.



During the existence of a Default, declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so.




7.10 Sales and Leasebacks.



Enter into any arrangement with any lender or investor or to which such lender or investor is
a party providing for the leasing by either Co-Borrower or any Subsidiary of real or personal
property which has been or is to be Disposed of by such Co-Borrower or such Subsidiary to such
lender or investor or to any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or rental obligations of such Co-Borrower or such
Subsidiary, in any case in excess at any time of an amount equal to seven and one-half percent
(7.5%) of Assets at such time, unless (a) the assets so Disposed of are
subject to, and may be Disposed of in compliance with, Section 7.04 and (b) such lease
obligations are Capitalized Leases and, immediately after giving effect to such transaction, no
Default exists or would exist after giving effect to such transaction, including, without
limitation, any Default with respect to the financial covenants set forth in Section 7.08.


 


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7.11 Sale of Receivables.



Sell with recourse, discount, transfer, dispose of or incur a Lien on its accounts receivable
in an aggregate amount (based on the face value of said accounts receivable) in excess of
$150,000,000.00 at any one time or in any one transaction, except accounts receivable the
collection of which is doubtful in accordance with GAAP.




7.12 Accounting Changes.



Make any change in its (a) accounting policies or reporting practices, except (i) as required
or permitted by GAAP or (ii) otherwise, if not a material change, or (b) fiscal year if such change
is made for the purposes of, amongst others, avoiding the occurrence of an Event of Default.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES





8.01 Events of Default. Any of the following shall constitute an Event of Default:



(a) Non-Payment. Any Co-Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within five days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or (iii) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or



(b) Specific Covenants. Any Co-Borrower fails to perform or observe any term,
covenant or agreement contained in (i) any of Sections 6.05, 6.10, 6.11, or
Article VII or (ii) Sections 6.01 or 6.02 and such failure continues for 10
days; or



(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on
its part to be performed or observed and such failure continues for 30 days; or



(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of any Co-Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any substantial and material respect when made or
deemed made; or


 


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(e) Cross-Default. (i) Any Co-Borrower or any Loan Party (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise and after the giving of any required notice and the running of any applicable grace or
cure periods) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $25,000,000.00, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event (but only after the giving of any required notice, the
expiration of any permitted grace period or both) is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which a Co-Borrower or any Loan Party is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which a Co-Borrower or any Loan Party is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by such Co-Borrower or such Loan
Party as a result thereof is greater than $25,000,000.00; or



(f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of
its respective Property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of such Person and
the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part of its Property is
instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or



(g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or admits
in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or levied against any Property
of any such Person in an aggregate principal amount of more than $10,000,000.00 and is not
released, vacated or fully bonded within 30 days after its issue or levy; or



(h) Judgments. There is entered against any Loan Party (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all such judgments or
orders) exceeding $50,000,000.00 (to the extent not covered by independent third-party insurance as
to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which
a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or


 


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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which, when taken together with all other ERISA Events that have occurred, has resulted or
would reasonably be expected to result in liability of any Co-Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000.00,
or (ii) any Co-Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $5,000,000.00;
or



(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;
or any Loan Party or any other Person acting on behalf of a Loan Party contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or




(k) Change of Control. There occurs any Change of Control.



8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Co-Borrowers;



(c) require that the Co-Borrowers Cash Collateralize the L/C Obligations (in an amount equal
to the then Outstanding Amount thereof); and



(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Co-Borrowers under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Co-Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.


 


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8.03 Application of Funds. After the exercise of remedies provided for in Section 
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III), ratably among them in proportion
to the respective amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Co-Borrowers pursuant to
Sections 2.03 and 2.16; and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Co-Borrowers or as otherwise required by Law.



Subject to Section 2.03(c) and Section 2.16, amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.


 


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ARTICLE IX.

ADMINISTRATIVE AGENT





9.01 Appointment and Authority.



Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The Lenders specifically authorize the
Administrative Agent to enter into and deliver the Sharing Agreement on their behalf. The
provisions of this Article IX are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and none of the Co-Borrowers or any other Loan Party shall have rights
as a third party beneficiary of any of such provisions.



9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Co-Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Co-Borrowers or any of their Affiliates that is communicated to
or obtained by the Person serving as the Administrative Agent or any of its Affiliates in
any capacity.


 


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The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Co-Borrowers, a Lender or the L/C Issuer.



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.




9.04 Reliance by Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Co-Borrowers), 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.



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


 


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9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Co-Borrowers. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Co-Borrowers, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Co-Borrowers and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Co-Borrowers to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Co-Borrowers and such successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of its or their respective duties and obligations hereunder or under the other Loan Documents, and
(c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.


 


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If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause
(d) of the definition of “Defaulting Lender”, the Required Lenders may, to the extent permitted
by applicable laws, by notice in writing to the Co-Borrowers and such Person, remove such Person as
Administrative Agent and, in consultation with the Co-Borrowers, appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States; provided that, without the consent of the
Co-Borrowers (such consent not to be unreasonably withheld), the Required Lenders shall not be
permitted to select a successor that is not a U.S. financial institution described in Treasury
Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury
Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier
day as shall be agreed by the Required Lenders) (hereinafter referred to as the “Removal
Effective Date”), then such removal shall nonetheless become effective in accordance with such
notice on the Removal Effective Date.



9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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 and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers, syndications agents, or co-documentation agents, if any, listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.



9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Co-Borrowers) shall be entitled
and empowered, by intervention in such proceeding or otherwise:




(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(h) and (i), 2.09 and 10.04) allowed in such
judicial proceeding; and


 


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(b) to collect and receive any monies or other Property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to
make such payments to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to
the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.



9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,




(a) to release any Lien on any Property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit (other than Letters of Credit as to which
other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have
been made), (ii) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (iii) subject to Section
10.01, if approved, authorized or ratified in writing by the Required Lenders; and




(b) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.



Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10.



ARTICLE X.

MISCELLANEOUS




10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Co-Borrowers or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Co-Borrowers
or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



(a) waive any condition set forth in Section 4.01(a) without the prior express written
consent of each Lender;


 


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(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the prior express written consent of such Lender;



(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document without the prior
express written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to amend the
definition of “Default Rate” or to waive any obligation of the Co-Borrowers to pay interest or
Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;



(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



(f) amend Section 1.08 or the definition of “Alternative Currency” without the written
consent of the L/C Issuer;



(g) change any provision of this Section 10.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender; or



(h) release all or substantially all of the value of the Guaranty without the prior express
written consent of each Lender, except to the extent the release of any Guarantor is permitted
pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone);



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.


 


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10.02 Notices; Effectiveness; Electronic Communication.



(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:




(i) if to the Co-Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).



(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the
L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Co-Borrowers may, in their respective
discretion, agree to accept notices and other communications to them hereunder by electronic
communications pursuant to procedures approved by them, provided that approval of
such procedures may be limited to particular notices or communications.



Unless the 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.


 


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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. 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
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (hereinafter collectively referred to as the
“Agent Parties”) have any liability to the Co-Borrowers, any Lender, the L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Agent Party; provided, however, that in no event shall any Agent Party have any
liability to the Co-Borrowers, any Lender, the L/C Issuer or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).



(d) Change of Address, Etc. Each of the Co-Borrowers, the Administrative Agent, the
L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Co-Borrowers, the Administrative Agent, the L/C Issuer and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time
to ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, 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 Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Co-Borrowers or their securities for purposes
of United States Federal or state securities laws.



(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
the Co-Borrowers even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Co-Borrowers shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of
the Co-Borrowers. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.


 


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10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and
subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce
any rights and remedies available to it and as authorized by the Required Lenders.




10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Co-Borrowers shall pay (i) all reasonable actual
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable actual fees, charges and disbursements of counsel for the Administrative Agent (subject
to the limits on such fees as set forth in Section 4.01(c))), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable actual out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
actual out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the reasonable actual fees, charges and disbursements of any counsel
for the Administrative Agent, any Lender or the L/C Issuer in connection with the enforcement
or protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit. The Co-Borrowers
shall have no obligation to pay, or reimburse any Person for, the fees and time charges of
attorneys who are employees of the Administrative Agent, any Lender or the L/C Issuer.


 


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(b) Indemnification by the Co-Borrowers. The Co-Borrowers shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the reasonable actual fees, charges and disbursements of any
counsel for any Indemnitee excluding the fees, time charges and disbursements for attorneys who may
be employees of any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Co-Borrowers or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan
Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any Property owned or
operated by the Co-Borrowers or any of their Subsidiaries, or any Environmental Liability related
in any way to the Co-Borrowers or any of their Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Co-Borrowers or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the Co-Borrowers or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Co-Borrowers or such other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



(c) Reimbursement by Lenders. To the extent that the Co-Borrowers for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be
paid by them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).


 


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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Co-Borrowers shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.



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



(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.



10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Co-Borrowers
is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of this Agreement.


 


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10.06 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that none of the Co-Borrowers or any other Loan Party may assign
or otherwise transfer any of its rights or obligations hereunder without the prior express written
consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C
Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000.00 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Co-Borrowers otherwise consent (each
such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.


 


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(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans;




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by  subsection (b)(i)(B) of this Section and, in
addition:




(A) the consent of the Co-Borrowers (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has occurred
and is continuing at the time of such assignment or (2) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500.00; provided,
however, that the Administrative Agent may, in its sole discretion, elect to waive
such processing and recordation fee in the case of any assignment. The assignee, if it is
not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




(v) No Assignment to Co-Borrower or Related Parties. No such assignment shall
be made to the Co-Borrowers, any Guarantor, or any of the Co-Borrowers respective Affiliates
or Subsidiaries.




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.




(vii) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or


 


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subparticipations, or other
compensating actions, including funding, with the consent of the Co-Borrowers and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full
all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or
any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as
appropriate) its full pro rata share of all Loans and participations in Letters of Credit
and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the
foregoing, in the event that any assignment of rights and obligations of any Defaulting
Lender hereunder shall become effective under applicable Law without compliance with the
provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Co-Borrowers (at their reasonable expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Co-Borrowers (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (hereinafter referred to as the “Register”). The entries in the
Register shall be conclusive, and the Co-Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition,
the Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available
for inspection by the Co-Borrowers and any Lender, at any reasonable time and from time to time
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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Co-Borrowers or the Administrative Agent, sell participations to any Person (other than a
natural person, a Defaulting Lender or the Co-Borrowers or any Guarantor or any of the
Co-Borrowers’ respective Affiliates or Subsidiaries) (hereinafter each shall be referred to as a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under
this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Co-Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.



Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification described in the
first proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, the Co-Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Co-Borrowers’ prior
written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Co-Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Co-Borrowers, to comply with Section 3.01(e) as though it were a Lender.



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30
days’ notice to the Co-Borrowers and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’
notice to the Co-Borrowers, resign as Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Co-Borrowers shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however,
that no failure by the Co-Borrowers to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing


 


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Line Lender, as the case may be. If Bank of America resigns
as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of Credit.



10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the
Lenders and the L/C Issuer agrees to maintain the confidentiality of the “Information” (as such
term is defined below), except that Information may be disclosed (a) to its Affiliates and to its
and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors
and representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.14 or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Co-Borrowers
and their obligations, (g) with the consent of the Co-Borrowers or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Co-Borrowers.



For purposes of this Section, “Information” means all information received from any
Co-Borrower or any Subsidiary relating to such Co-Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any
Co-Borrower or any Subsidiary, provided that, in the case of information received
from a Co-Borrower or a Subsidiary after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


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Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning a Co-Borrower or a Subsidiary,
as the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of any Co-Borrower or any
other Loan Party against any and all of the obligations of such Co-Borrower or such Loan Party now
or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand
under this Agreement or any other Loan Document and although such obligations of such Co-Borrower
or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender
or the L/C Issuer different from the branch or office holding such deposit or obligated on such
indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right
of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent
for further application in accordance with the provisions of Section 2.17 and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Administrative Agent and the Lenders, and (b) the Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Co-Borrowers and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such
setoff and application.



10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (hereinafter referred to as the
“Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the Co-Borrowers. In determining
whether the interest contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the contemplated term of
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10.10 Counterparts; Integration; Effectiveness. (a) This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract.



(b) This Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof (including the credit
facilities and letters of credit referenced in paragraphs of this Section 10.10.



(c) Except as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Co-Borrowers are required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, or if any other circumstance exists hereunder that gives the Co-Borrowers the
right to replace a Lender as a party hereto, then the Co-Borrowers may, at their sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:



(a) the Co-Borrowers shall have paid to the Administrative Agent the assignment fee specified
in Section 10.06(b);


 


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(b) such Lender shall have received payment of an amount equal to one hundred percent (100%)
of the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Co-Borrowers (in the case of all other amounts);



(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




(d) such assignment does not conflict with applicable Laws.



A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Co-Borrowers to
require such assignment and delegation cease to apply.




10.14 Governing Law; Jurisdiction; Etc.



(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



(b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE CO-BORROWERS OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


 


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(c) WAIVER OF VENUE. EACH CO-BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Co-Borrower hereby acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and other
services regarding this Agreement provided by the Administrative Agent and the Arrangers are
arm’s-length commercial transactions between the Co-Borrowers, each other Loan Party and their
respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the
other hand, (ii) each of the Co-Borrowers and the other Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the
Co-Borrowers and each other Loan Party is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan



 


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Documents; (b) (i) the Administrative Agent and the Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary
for the Co-Borrowers, any other Loan Party or any of their respective Affiliates, or any other
Person and (ii) neither the Administrative Agent nor any Arranger has any obligation to the
Co-Borrowers, any other Loan Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (c) the Administrative Agent, the Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Co-Borrowers, the other Loan Parties and their respective Affiliates, and neither the
Administrative Agent nor any Arranger has any obligation to disclose any of such interests to the
Co-Borrowers, any other Loan Party or any of their respective Affiliates. To the fullest extent
permitted by law, each Co-Borrower hereby waives and releases any claims that it may have against
the Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated hereby.



10.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) 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.



10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Co-Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (hereinafter referred to as the “Act”), it is required
to obtain, verify and record information that identifies the Co-Borrowers, which information
includes the name and address of the Co-Borrowers and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Co-Borrowers in accordance with the
Act. The Co-Borrowers shall, promptly following a request by the Administrative Agent or any
Lender, provide all documentation and other information that the Administrative Agent or such
Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.




10.19 Time of the Essence. Time is of the essence of the Loan Documents.



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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	CO-BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 
	ATTEST:	 	VERISK ANALYTICS, INC., as a Co-Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Kenneth E. Thompson
 

Kenneth E. Thompson
	 	By:
	 	/s/ Mark V. Anquillare
 

Mark V. Anquillare
	 	 
	 

	 	Secretary
	 	 	 	Executive Vice President and	 	 
	 

	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	ATTEST:	 	INSURANCE SERVICES OFFICE, INC., as a Co-Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Kenneth E. Thompson
 

Kenneth E. Thompson
	 	By:
	 	/s/ Mark V. Anquillare
 

Mark V. Anquillare
	 	 
	 

	 	Secretary
	 	 	 	Executive Vice President and	 	 
	 

	 	 	 	 	 	Chief Financial Officer	 	 





 


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	 	 	 	 	BANK OF AMERICA, N.A., as	 	 
	 	 	 	 	Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Roberto Salazar
 

Name: Roberto Salazar
	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 





 


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	 	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William T. Franey
 

Name: William T. Franey
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 





 


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	 	 	JPMORGAN CHASE BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michelle Cipriani
 

Name: Michelle Cipriani
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


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	 	 	MORGAN STANLEY BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sherrese Clarke
 

Name: Sherrese Clarke
	 	 
	 

	 	 	 	Title: Authorized Signatory	 	 





 


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	 	 	WELLS FARGO BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tony Sood
 

Name: Tony Sood
	 	 
	 

	 	 	 	Title: Director	 	 





 


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	 	 	SUNTRUST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David A. Bennett
 

Name: David A. Bennett
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


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	 	 	SOVEREIGN BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chris Wolfslayer
 

Name: Chris Wolfslayer
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 





 


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	 	 	RBS CITIZENS, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul Darrigo
 

Name: Paul Darrigo
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 





 


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	 	 	THE NORTHERN TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Peter J. Hallan
 

Name: Peter J. Hallan
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


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