Exhibit 10.33


 


POSTED TO INTRALINKS 7/16/07




 





 


$675,000,000


 


CREDIT AGREEMENT


 


Dated as of July [  ], 2007


 


among


 


ORBITZ WORLDWIDE, INC.,

as Borrower,


 


UBS AG, STAMFORD BRANCH,

as Administrative Agent and L/C Issuer,


 


UBS LOAN FINANCE LLC,

as Swing Line Lender


 


THE OTHER LENDERS PARTY HERETO,


 


CREDIT SUISSE SECURITIES (USA) LLC,

as Syndication Agent,


 


LEHMAN BROTHERS INC.,

as Documentation Agent,


 


UBS SECURITIES LLC and

CREDIT SUISSE SECURITIES (USA) LLC,

as Co-Lead Arrangers,


 


and


 


UBS SECURITIES LLC, 

CREDIT SUISSE SECURITIES (USA) LLC and

LEHMAN BROTHERS INC.,

as Joint Bookrunners




 





 


Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions
  and Accounting Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Defined
  Terms

  	
  2

  
	
  Section 1.02

  	
  Other
  Interpretive Provisions

  	
  45

  
	
  Section 1.03

  	
  Accounting
  Terms

  	
  46

  
	
  Section 1.04

  	
  Rounding

  	
  46

  
	
  Section 1.05

  	
  References
  to Agreements, Laws, Etc.

  	
  46

  
	
  Section 1.06

  	
  Times of Day

  	
  46

  
	
  Section 1.07

  	
  Timing of
  Payment of Performance

  	
  46

  
	
  Section 1.08

  	
  Currency
  Equivalents Generally

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Commitments and Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  The Loans

  	
  47

  
	
  Section 2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  48

  
	
  Section 2.03

  	
  Letters of
  Credit.

  	
  51

  
	
  Section 2.04

  	
  Swing Line
  Loans

  	
  60

  
	
  Section 2.05

  	
  Prepayments

  	
  63

  
	
  Section 2.06

  	
  Termination
  or Reduction of Commitments

  	
  66

  
	
  Section 2.07

  	
  Repayment of
  Loans

  	
  67

  
	
  Section 2.08

  	
  Interest

  	
  68

  
	
  Section 2.09

  	
  Fees

  	
  68

  
	
  Section 2.10

  	
  Computation
  of Interest and Fees

  	
  69

  
	
  Section 2.11

  	
  Evidence of
  Indebtedness

  	
  69

  
	
  Section 2.12

  	
  Payments
  Generally

  	
  70

  
	
  Section 2.13

  	
  Sharing of
  Payments

  	
  72

  
	
  Section 2.14

  	
  Incremental
  Credit Extensions

  	
  73

  
	
  Section 2.15

  	
  Currency
  Equivalents

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  Taxes,
  Increased Costs Protection and Illegality

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Taxes

  	
  75

  
	
  Section 3.02

  	
  Illegality

  	
  78

  
	
  Section 3.03

  	
  Inability to
  Determine Rates

  	
  78

  
	
  Section 3.04

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

  	
  79

  
	
  Section 3.05

  	
  Funding
  Losses

  	
  80

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.06

  	
  Matters
  Applicable to All Requests for Compensation

  	
  81

  
	
  Section 3.07

  	
  Replacement
  of Lenders under Certain Circumstances

  	
  82

  
	
  Section 3.08

  	
  Survival

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  Conditions
  Precedent to Effectiveness and Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Conditions
  of Initial Credit Extension on the Closing Date

  	
  83

  
	
  Section 4.02

  	
  Conditions
  to All Credit Extensions

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  Representations
  and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
  86

  
	
  Section 5.02

  	
  Authorization;
  No Contravention

  	
  86

  
	
  Section 5.03

  	
  Governmental
  Authorization; Other Consents

  	
  86

  
	
  Section 5.04

  	
  Binding
  Effect

  	
  87

  
	
  Section 5.05

  	
  Financial
  Statements; No Material Adverse Effect

  	
  87

  
	
  Section 5.06

  	
  Litigation

  	
  88

  
	
  Section 5.07

  	
  No Default

  	
  88

  
	
  Section 5.08

  	
  Ownership of
  Property; Liens

  	
  88

  
	
  Section 5.09

  	
  Environmental
  Compliance

  	
  88

  
	
  Section 5.10

  	
  Taxes

  	
  89

  
	
  Section 5.11

  	
  ERISA
  Compliance

  	
  89

  
	
  Section 5.12

  	
  Subsidiaries;
  Equity Interests

  	
  90

  
	
  Section 5.13

  	
  Margin
  Regulations; Investment Company Act

  	
  90

  
	
  Section 5.14

  	
  Disclosure

  	
  91

  
	
  Section 5.15

  	
  Intellectual
  Property; Licenses, Etc.

  	
  91

  
	
  Section 5.16

  	
  Solvency

  	
  91

  
	
  Section 5.17

  	
  Subordination
  of Junior Financing

  	
  91

  
	
  Section 5.18

  	
  Labor
  Matters

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  Affirmative
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Financial
  Statements

  	
  92

  
	
  Section 6.02

  	
  Certificates;
  Other Information

  	
  93

  
	
  Section 6.03

  	
  Notices

  	
  94

  
	
  Section 6.04

  	
  Payment of
  Obligations

  	
  95

  
	
  Section 6.05

  	
  Preservation
  of Existence, Etc.

  	
  95

  
	
  Section 6.06

  	
  Maintenance
  of Properties

  	
  95

  
	
  Section 6.07

  	
  Maintenance
  of Insurance

  	
  95

  
	
  Section 6.08

  	
  Compliance
  with Laws

  	
  95

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.09

  	
  Books and
  Records

  	
  95

  
	
  Section 6.10

  	
  Inspection
  Rights

  	
  95

  
	
  Section 6.11

  	
  Covenant to
  Guarantee Obligations and Give Security

  	
  96

  
	
  Section 6.12

  	
  Compliance
  with Environmental Laws

  	
  98

  
	
  Section 6.13

  	
  Further
  Assurances and Post-Closing Conditions

  	
  98

  
	
  Section 6.14

  	
  Designation
  of Subsidiaries

  	
  99

  
	
  Section 6.15

  	
  Flood
  Insurance

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
  Negative
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Liens

  	
  100

  
	
  Section 7.02

  	
  Investments

  	
  103

  
	
  Section 7.03

  	
  Indebtedness

  	
  107

  
	
  Section 7.04

  	
  Fundamental
  Changes

  	
  111

  
	
  Section 7.05

  	
  Dispositions

  	
  112

  
	
  Section 7.06

  	
  [Reserved]

  	
  114

  
	
  Section 7.07

  	
  Change in
  Nature of Business

  	
  114

  
	
  Section 7.08

  	
  Transactions
  with Affiliates

  	
  115

  
	
  Section 7.09

  	
  Burdensome
  Agreements

  	
  116

  
	
  Section 7.10

  	
  Use of
  Proceeds

  	
  116

  
	
  Section 7.11

  	
  Financial
  Covenants

  	
  117

  
	
  Section 7.12

  	
  Accounting
  Changes

  	
  117

  
	
  Section 7.13

  	
  Prepayments,
  Etc. of Indebtedness

  	
  117

  
	
  Section 7.14

  	
  Equity
  Interests of the Borrower and Restricted Subsidiaries

  	
  118

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
  Events of
  Default and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Events of
  Default

  	
  118

  
	
  Section 8.02

  	
  Remedies
  Upon Event of Default

  	
  121

  
	
  Section 8.03

  	
  Exclusion of
  Immaterial Subsidiaries

  	
  121

  
	
  Section 8.04

  	
  Application
  of Funds

  	
  122

  
	
  Section 8.05

  	
  Borrower’s
  Right to Cure

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
  Administrative
  Agent and Other Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Appointment
  and Authorization of Agents

  	
  123

  
	
  Section 9.02

  	
  Delegation
  of Duties

  	
  124

  
	
  Section 9.03

  	
  Liability of
  Agents

  	
  124

  
	
  Section 9.04

  	
  Reliance by
  Agents

  	
  125

  
	
  Section 9.05

  	
  Notice of
  Default

  	
  125

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.06

  	
  Credit
  Decision; Disclosure of Information by Agents

  	
  126

  
	
  Section 9.07

  	
  Indemnification
  of Agents

  	
  126

  
	
  Section 9.08

  	
  Agents in
  their Individual Capacities

  	
  127

  
	
  Section 9.09

  	
  Successor
  Agents

  	
  127

  
	
  Section 9.10

  	
  Administrative
  Agent May File Proofs of Claim

  	
  128

  
	
  Section 9.11

  	
  Collateral
  and Guaranty Matters

  	
  128

  
	
  Section 9.12

  	
  Other
  Agents; Arrangers and Managers

  	
  129

  
	
  Section 9.13

  	
  Appointment
  of Supplemental Administrative Agents

  	
  129

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  10.01

  	
  Amendments,
  Etc.

  	
  130

  
	
  Section
  10.02

  	
  Notices and
  Other Communications; Facsimile Copies

  	
  133

  
	
  Section
  10.03

  	
  No Waiver;
  Cumulative Remedies

  	
  134

  
	
  Section
  10.04

  	
  Attorney
  Costs, Expenses and Taxes

  	
  134

  
	
  Section
  10.05

  	
  Indemnification
  by the Borrower

  	
  134

  
	
  Section
  10.06

  	
  Payments Set
  Aside

  	
  135

  
	
  Section
  10.07

  	
  Successors
  and Assigns

  	
  136

  
	
  Section
  10.08

  	
  Confidentiality

  	
  139

  
	
  Section
  10.09

  	
  Setoff

  	
  140

  
	
  Section
  10.10

  	
  Interest
  Rate Limitation

  	
  141

  
	
  Section
  10.11

  	
  Counterparts

  	
  141

  
	
  Section
  10.12

  	
  Integration

  	
  141

  
	
  Section
  10.13

  	
  Survival of
  Representations and Warranties

  	
  141

  
	
  Section
  10.14

  	
  Severability

  	
  142

  
	
  Section
  10.15

  	
  Tax Forms

  	
  142

  
	
  Section
  10.16

  	
  GOVERNING
  LAW

  	
  144

  
	
  Section
  10.17

  	
  WAIVER OF
  RIGHT TO TRIAL BY JURY

  	
  144

  
	
  Section
  10.18

  	
  Binding
  Effect

  	
  144

  
	
  Section
  10.19

  	
  Judgment
  Currency

  	
  144

  
	
  Section
  10.20

  	
  Lender
  Action

  	
  145

  
	
  Section
  10.21

  	
  USA PATRIOT
  Act

  	
  145

  
	
  Section 10.22

  	
  Agent for
  Service of Process

  	
  145

  



 


SCHEDULES


 


	
  I

  	
   

  	
  Guarantors

  
	
  1.01A

  	
   

  	
  [Reserved]

  
	
  1.01B

  	
   

  	
  Certain
  Security Interests and Guarantees

  
	
  1.01C

  	
   

  	
  Unrestricted
  Subsidiaries

  
	
  1.01D

  	
   

  	
  Mandatory
  Cost

  
	
  1.01E

  	
   

  	
  Existing
  Letters of Credit

  
	
  1.01F

  	
   

  	
  Excluded
  Subsidiaries

  



 


iv

















 


	
  2.01

  	
   

  	
  Dollar
  Revolving Credit Commitment; Alternative Currency Revolving Credit Commitment

  
	
  2.01(a)

  	
   

  	
  Term Commitment

  
	
  2.03(a)(iii)(B)

  	
   

  	
  Certain
  Letters of Credit

  
	
  5.05

  	
   

  	
  Certain
  Liabilities

  
	
  5.09(b)

  	
   

  	
  Environmental
  Matters

  
	
  5.09(d)

  	
   

  	
  Hazardous
  Materials

  
	
  5.10

  	
   

  	
  Taxes

  
	
  5.11(a)

  	
   

  	
  ERISA
  Compliance

  
	
  5.12

  	
   

  	
  Subsidiaries
  and Other Equity Investments

  
	
  7.01(b)

  	
   

  	
  Existing
  Liens

  
	
  7.02(f)

  	
   

  	
  Existing
  Investments

  
	
  7.03(b)

  	
   

  	
  Existing
  Indebtedness

  
	
  7.04(f)

  	
   

  	
  Permitted
  Subsidiary Fundamental Changes

  
	
  7.05(k)

  	
   

  	
  Dispositions

  
	
  7.05(m)

  	
   

  	
  Permitted
  Subsidiary Dispositions

  
	
  7.08

  	
   

  	
  Transactions
  with Affiliates

  
	
  7.09

  	
   

  	
  Existing
  Restrictions

  
	
  10.02

  	
   

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  



 


 


EXHIBITS


 


	
  Form of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Committed
  Loan Notice

  
	
  B

  	
   

  	
  Swing Line
  Loan Notice

  
	
  C-1

  	
   

  	
  Term Note

  
	
  C-2

  	
   

  	
  Dollar
  Revolving Credit Note

  
	
  C-3

  	
   

  	
  Alternative
  Currency Revolving Credit Note

  
	
  D

  	
   

  	
  Compliance
  Certificate

  
	
  E

  	
   

  	
  Assignment
  and Assumption

  
	
  F

  	
   

  	
  Guaranty

  
	
  G

  	
   

  	
  Security
  Agreement

  
	
  H

  	
   

  	
  [Reserved]

  
	
  I

  	
   

  	
  Opinion
  Matters — Counsel to Loan Parties

  
	
  J

  	
   

  	
  Intellectual
  Property Security Agreement

  



 


ii

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of July [   ], 2007, among ORBITZ WORLDWIDE,
INC., a Delaware corporation (the “Borrower”), UBS
AG, STAMFORD BRANCH as Administrative Agent, Collateral Agent and an L/C Issuer,
UBS LOAN FINANCE LLC, as Swing Line Lender, each lender from time to time party
hereto (collectively, the “Lenders” and individually,
a “Lender”), CREDIT SUISSE SECURITIES
(USA) LLC, as Syndication Agent and LEHMAN BROTHERS INC., as Documentation
Agent.


 


PRELIMINARY STATEMENTS


 


The Borrower has requested that
simultaneously with the consummation of the Orbitz IPO, the Term Lenders extend
credit to the Borrower in the form of (i) Term Loans in an initial aggregate Dollar
Amount of $600,000,000, (ii) a Dollar Revolving Credit Facility in an initial
aggregate Dollar Amount of $50,000,000 and (iii) an Alternative Currency
Revolving Credit Facility in an initial aggregate Dollar Amount of $25,000,000.  The Dollar Revolving Credit Facility may
include one or more Swing Line Loans and one or more Dollar Letters of Credit
from time to time.  The Alternative
Currency Revolving Credit Facility may include one or more Alternative Currency
Letters of Credit from time to time.


 


The net proceeds of the Term Loans will be
used to make a special dividend payment to Parent (the “Parent Distribution”)
(it being understood that an amount not in excess of $100,000,000 resulting
from (w) the Net Cash Proceeds from the Orbitz IPO plus
(x) the Net Cash Proceeds from the Term Loans minus
(z) $775,000,000 shall not be required to be included in the Parent Distribution),
the proceeds of which will be used to prepay Indebtedness under that certain
Credit Agreement dated as of August 23, 2006, as amended and restated as of
January 29, 2007, as further amended and restated as of May 23, 2007, among
Travelport LLC as the borrower, Travelport Limited as Holdings, Waltonville
Limited as Intermediate Parent, UBS AG, Stamford Branch as Administrative Agent
and L/C Issuer, UBS Loan Finance LLC, as Swing Line Lender, the other lenders
party thereto from time to time, and the other agents, bookrunners and
arrangers party thereto (the “Travelport Credit
Agreement”).  The proceeds of
Revolving Credit Loans made after the Closing Date will be used for working
capital and other general corporate purposes of the Borrower and its Subsidiaries,
including the financing of Permitted Acquisitions.  Swing Line Loans and Letters of Credit will
be used for general corporate purposes of the Borrower and its Subsidiaries.


 


The applicable Lenders have indicated their
willingness to lend, and the L/C Issuers have indicated their willingness to issue
Letters of Credit, in each case, on the terms and subject to the conditions set
forth herein.


 


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


 

















 


ARTICLE I


 


Definitions and Accounting Terms


 


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


 


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


 


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


 


“Act” has the
meaning specified in Section 10.21.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


“Agreement”
means this Credit Agreement.


 


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


 


“Alternative Currency”
means Sterling or Euros.


 


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


 


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


 


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


 


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


 


“Alternative
Currency L/C Obligations” means, as at any date of determination,
the aggregate maximum amount then available to be drawn under all outstanding
Alternative Currency Letters of Credit (whether or not such maximum amount is
then in effect under any such Alternative Currency Letter of Credit if such
maximum amount increases periodically pursuant to the terms of such Alternative
Currency Letter of Credit) plus the aggregate of all Unreimbursed
Amounts in respect of Alternative Currency Letters of Credit, including all
Alternative Currency L/C Borrowings.


 


“Alternative Currency
Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency or Dollars and issued by any Alternative Currency L/C
Issuer.


 


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


 


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


 


3

















 


with this Agreement.  The aggregate Dollar Amount of Alternative
Currency Revolving Credit Commitments of all Alternative Currency Revolving
Credit Lenders shall be $25,000,000 on the Closing Date, as such amount may be
adjusted from time to time in accordance with the terms of this Agreement.


 


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


 


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


 


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


 


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


 


“Alternative
Currency Revolving Credit Note” means a promissory note of the
Borrower payable to any Alternative Currency Revolving Credit Lender or its
registered assigns, in substantially the form of Exhibit C-3 hereto,
evidencing the aggregate Indebtedness of the Borrower to such Alternative
Currency Revolving Credit Lender resulting from the Alternative Currency Revolving
Credit Loans made by such Alternative Currency Revolving Credit Lender.


 


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


 


(a)           with respect to the Eurocurrency Rate for
Term Loans, 2.50%,


 


(b)           with respect to the Base Rate for Term
Loans, 1.50%


 


(c)           with respect to Revolving Credit Loans,
unused Revolving Credit Commitments and Letter of Credit fees, the following
percentages per annum, based upon the Total Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent pursuant
to Section 6.02(b):


 


	
  Pricing

  Level

  	
   

  	
  Total Leverage Ratio

  	
   

  	
  Eurocurrency Rate for

  Revolving Credit Loans

  and 

  Letter of Credit Fees

  	
   

  	
  Base Rate for 

  Revolving

  Credit Loans

  	
   

  	
  Commitment Fee

  Rate

  	
   

  
	
  1

  	
   

  	
  >3.0:1

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  2

  	
   

  	
  <3.0:1 but >2.5:1

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  0.50

  	
  %

  
	
  3

  	
   

  	
  <2.5:1 but >2.0:1

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  0.50

  	
  %

  
	
  4

  	
   

  	
  <2.0:1

  	
   

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  	
  0.375

  	
  %

  



 


Any increase or decrease in the Applicable
Rate resulting from a change in the Total Leverage Ratio shall become effective
as of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b); provided
that at the option of the Administrative Agent or the Required Lenders, the
highest Pricing Level shall apply (x) as of the


 


4

















 


first Business Day after the date on which a
Compliance Certificate was required to have been delivered but was not
delivered, and shall continue to so apply to and including the date on which
such Compliance Certificate is so delivered (and thereafter the Pricing Level
otherwise determined in accordance with this definition shall apply) and (y) as
of the first Business Day after an Event of Default under Section 8.01(a) shall
have occurred and be continuing, and shall continue to so apply to but
excluding the date on which such Event of Default is cured or waived (and
thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Audited Financial
Statements” means (i) the audited combined balance sheets of Orbitz
Worldwide, Inc. and its Subsidiaries as of each of December 31, 2006, 2005 and
2004, and the related audited consolidated statements of income, stockholders’
equity and cash flows for Orbitz Worldwide, Inc. and its Subsidiaries for the
fiscal years ended December 31, 2006, 2005 and 2004, respectively.


 


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


 


5

















 


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


 


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


 


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


 


“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing,
as the context may require.


 


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


 


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


 


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


 


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


 


“Capital Expenditures”
means, for any period, the aggregate of (a) all expenditures (whether paid in
cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries
during such period that, in conformity with GAAP, are or are required to be included
as additions during such period to property, plant or equipment reflected in
the consolidated balance sheet of the Borrower and the Restricted Subsidiaries,
(b) all Capitalized Software Expenditures


 


6

















 


for such period and (c) the value of all
assets under Capitalized Leases incurred by the Borrower and the Restricted
Subsidiaries during such period; provided that
the term “Capital Expenditures” shall not include (i) expenditures made in
connection with the replacement, substitution, restoration or repair of assets
to the extent financed with (x) insurance proceeds paid on account of the loss
of or damage to the assets being replaced, restored or repaired or (y) awards
of compensation arising from the taking by eminent domain or condemnation of
the assets being replaced, (ii) the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit granted
by the seller of such equipment for the equipment being traded in at such time,
(iii) the purchase of plant, property or equipment or software to the extent
financed with the proceeds of Dispositions that are not required to be applied
to prepay Term Loans pursuant to Section 2.05(b), (iv) expenditures that
constitute any part of Consolidated Lease Expense, (v) expenditures that are
accounted for as capital expenditures by the Borrower or any Restricted
Subsidiary and that actually are paid for by a Person other than the Borrower
or any Restricted Subsidiary and for which none of the Borrower or any
Restricted Subsidiary has provided or is required to provide or incur, directly
or indirectly, any consideration or obligation to such Person or any other
Person (whether before, during or after such period), (vi) the book value of
any asset owned by the Borrower or any Restricted Subsidiary prior to or during
such period to the extent that such book value is included as a capital
expenditure during such period as a result of such Person reusing or beginning
to reuse such asset during such period without a corresponding expenditure
actually having been made in such period; provided that
(x) any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period in which such expenditure
actually is made and (y) such book value shall have been included in Capital
Expenditures when such asset was originally acquired, (vii) capital
requirements related to the one-time conversion to a common global technology
platform in an aggregate amount not to exceed $30,000,000 during the term of
this Agreement, or (viii) expenditures that constitute Permitted Acquisitions.


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


(c)           time deposits with, or insured certificates
of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender
or (ii) (A) is organized under the Laws of the United States, any state
thereof, the District of Columbia or any member nation of the Organization for
Economic Cooperation and Development or is the principal banking Subsidiary of
a bank holding company organized under the Laws of the United States, any state
thereof, the District of Columbia or any member nation of the Organization for
Economic Cooperation and Development, and is a member of the Federal Reserve
System, and (B) has combined capital and surplus of at least $250,000,000 (any
such bank in the foregoing clauses (i) or (ii) being an “Approved
Bank”), in each case with average maturities of not more than 12
months from the date of acquisition thereof;


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)           (A) a “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any
employee benefit plan of such person and its Subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan, to the extent such plan, trustee, agent or
other fiduciary or administrator is not acting in concert with another person
or entity), excluding the Permitted Holders, shall become the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or
indirectly, of more than the greater of (x) thirty-five percent (35%) of the
then outstanding voting stock of the Borrower and (y) the


 


9

















 


percentage of the then
outstanding voting stock of Borrower owned, directly or indirectly,
beneficially by the Permitted Holders or (B) during each period of twelve (12)
consecutive months, the board of directors of the Borrower shall not consist of
a majority of the Continuing Directors; or


 


(b)           any “Change of Control” (or any comparable
term) in any document pertaining to any Junior Financing with an aggregate
outstanding principal amount in excess of the Threshold Amount.


 


“Class” (a) when
used with respect to Lenders, refers to whether such Lenders are Dollar Revolving
Credit Lenders, Alternative Currency Revolving Credit Lenders or Term Lenders,
(b) when used with respect to Commitments, refers to whether such Commitments
are Dollar Revolving Credit Commitments, Alternative Currency Revolving Credit
Commitments or Term Commitments and (c) when used with respect to Loans or a
Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing,
are Dollar Revolving Credit Loans, Alternative Currency Revolving Credit Loans
or Term Loans.


 


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


 


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


 


“Collateral”
means all the “Collateral” as defined in any Collateral Document and shall include
the Mortgaged Properties.


 


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


 


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


 


(a)           the Administrative Agent shall have received
each Collateral Document required to be delivered on the Closing Date pursuant
to Section 4.01(a)(iii) or pursuant to Section 6.11 at such time, duly executed
by each Loan Party thereto;


 


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


 


(c)           [reserved];


 


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


 


10

















 


issued and outstanding Equity
Interests of each wholly owned Foreign Subsidiary that is directly owned by the
Borrower or any Domestic Subsidiary of the Borrower that is a Guarantor;


 


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


 


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


 


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


 


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


 


Notwithstanding the foregoing provisions of
this definition or anything in this Agreement or any other Loan Document to the
contrary, (a) with respect to leases of real property entered into by the
Borrower or any other Guarantor, the Borrower shall not be required to take any
action with respect to creation or perfection of security interests with
respect to such leases and (b) Liens required to be granted from time to time
pursuant to the Collateral and Guarantee Requirement shall be subject to
exceptions and limitations set forth in the Collateral


 


11

















 


Documents as in effect on the Closing Date
and, to the extent appropriate in the applicable jurisdiction, as agreed
between the Administrative Agent and the Borrower.


 


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


 


“Commitment”
means a Term Commitment or a Revolving Credit Commitment, as the context may require.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)          Non-Cash Charges,


 


12

















 


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


 


(vi)          restructuring charges or
reserves (including restructuring costs related to acquisitions after the date
hereof and to closure/consolidation of facilities),


 


(vii)         non-recurring charges
relating to the conversion to a common global technology platform in an aggregate
amount not to exceed $30,000,000 for the term of this Agreement,


 


(viii)        any deductions
attributable to minority interests,


 


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


 


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


 


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


 


(xii)          the amount of net cost
savings projected by the Borrower in good faith to be realized as a result of
specified actions taken during or prior to such period (calculated on a pro
forma basis as though such cost savings had been realized on the first day of
such period), net of the amount of actual benefits realized during such period
from such actions; provided that
(A) such cost savings are reasonably identifiable and factually supportable,
(B) such actions are taken no later than 36 months after the Closing Date, (C)
no cost savings shall be added pursuant to this clause (xi) to the extent
duplicative of any expenses or charges relating to such cost savings that are
included in clause (vi) above with respect to such period and (D) the aggregate
amount of cost savings added pursuant to this clause (xii) shall not exceed
$25,000,000 for any period consisting of four consecutive quarters,


 


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


 


13

















 


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


 


(ii)           non-cash gains
(excluding any non-cash gain to the extent it represents the reversal of an
accrual or reserve for a potential cash item that reduced Consolidated EBITDA
in any prior period),


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


sold, transferred or otherwise disposed of,
closed or classified as discontinued operations by the Borrower or any
Restricted Subsidiary during such period (each such Person, property, business
or asset so sold or disposed of, a “Sold Entity or Business”),
based on the actual Disposed EBITDA of such Sold Entity or Business for such
period (including the portion thereof occurring prior to such sale, transfer or
disposition).


 


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


 


“Consolidated Fixed Charges”
means, for any period, the sum of (i) the cash interest expense (including that
attributable to Capitalized Leases), of the Borrower and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing and net costs under Swap
Contracts, (ii) any scheduled principal payments made or required to be made on
Funded Debt made during such period, (iii) the aggregate amount of Capital
Expenditures for such period, (iv) all cash payments in respect of income taxes
made during such period (net of any cash refund in respect of income taxes
actually received during such period) and (v) the product of (a) all dividend
payments on any Equity Interests of the Borrower (other than to the extent paid
in Qualified Equity Interests) made during such period, multiplied by (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of the Borrower and the Restricted
Subsidiaries, expressed as a decimal; provided that
for purposes of the definition of the term “Permitted Acquisition” and Section
7.11, there shall be included in determining Consolidated Fixed Charges for any
period the cash interest expense (or income) of any Acquired Entity or Business
acquired during such period, based on the cash interest expense (or income) of
such Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) assuming any Indebtedness incurred or
repaid in connection with any such acquisition had been incurred or prepaid on
the first day of such period.  Notwithstanding
anything to the contrary contained herein, for purposes of determining
Consolidated Fixed Charges for any period ending prior to the first anniversary
of the Closing Date, Consolidated Fixed Charges shall be an amount equal to
actual Consolidated Fixed Charges from the Closing Date through the date of
determination multiplied by a fraction the numerator of which is 365 and the
denominator of which is the number of days from the Closing Date through the
date of determination.


 


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


 


15

















 


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


 


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


 


“Consolidated Total Debt”
means, as of any date of determination, (a) the aggregate principal amount of
Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on
such date, determined on a consolidated basis in accordance with GAAP (but
excluding the effects of any discounting of Indebtedness resulting from the
application of purchase accounting in connection with the Transaction or any
Permitted Acquisition), consisting of Indebtedness for borrowed money,
obligations in respect of Capitalized Leases and debt obligations evidenced by
promissory notes or similar instruments, minus (b) the aggregate amount
of cash and Cash Equivalents (in each case, free and clear of all Liens, other
than nonconsensual


 


16

















 


Liens permitted by Section 7.01 and Liens
permitted by Section 7.01(s) and clauses (i) and (ii) of Section 7.01(u))
included in the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries as of such date.


 


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


 


“Continuing Directors”
means the directors of the Borrower on the Closing Date, as elected or
appointed after giving effect to the Transaction and the other transactions
contemplated hereby, and each other director, if, in each case, such other directors’
nomination for election to the board of directors of the Borrower is
recommended by a majority of the then Continuing Directors or such other
director receives the vote of the Permitted Holders in his or her election by
the stockholders of the Borrower.


 


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


 


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


 


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


 


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


 


“Cumulative Excess Cash
Flow” has the meaning specified in Section 7.02(n).


 


“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 an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per
annum; provided that with respect to a
Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the
interest


 


17

















 


rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2.0% per annum,
in each case, to the fullest extent permitted by applicable Laws.


 


“Defaulting Lender”
means any Lender that (a) has failed to fund any portion of the Term Loans,
Revolving Credit Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one (1) Business
Day of the date required to be funded by it hereunder, unless the subject of a
good faith dispute or subsequently cured, (b) has otherwise failed to pay over
to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one (1) Business Day of the date when due, unless
the subject of a good faith dispute or subsequently cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


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


 


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


 


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


 


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


 


18

















 


“Documentation Agent”
means Lehman Brothers Inc., as Documentation Agent under this Agreement.


 


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


 


“Dollar Amount”
means, at any time:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Dollar L/C Obligation”
means, as at any date of determination, the aggregate maximum amount then
available to be drawn under all outstanding Dollar Letters of Credit (whether
or not such maximum amount is then in effect under any such Dollar Letter of
Credit if such maximum amount increases periodically pursuant to the terms of
such Dollar Letter of Credit) plus the aggregate of all Unreimbursed Amounts in
respect of Dollar Letters of Credit, including all Dollar L/C Borrowings.


 


“Dollar Letter of Credit”
means a Letter of Credit denominated in Dollars and issued by any Dollar L/C
Issuer.


 


19

















 


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


 


“Dollar Revolving Credit
Commitment” means, as to each Dollar Revolving Credit Lender, its
obligation to (a) make Dollar Revolving Credit Loans to the Borrowers pursuant
to Section 2.01(c)(i), (b) purchase participations in Dollar L/C Obligations in
respect of Dollar Letters of Credit 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, and opposite such Lender’s name on Schedule 2.01
under the caption “Dollar Revolving Credit Commitment” or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.  The aggregate Dollar
Revolving Credit Commitments of all Dollar Revolving Credit Lenders shall be
$50,000,000 on the Closing Date, as such amount may be adjusted from time to
time in accordance with the terms of this Agreement.


 


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


 


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


 


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


 


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


 


“Dollar
Revolving Credit Note” means a promissory note of the Borrower
payable to any Dollar Revolving Credit Lender or its registered assigns, in
substantially the form of Exhibit C-2 hereto, evidencing the aggregate
Indebtedness of the Borrower to such Dollar Revolving Credit Lender resulting
from the Dollar Revolving Credit Loans made by such Revolving Credit Lender.


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


“Eurocurrency Rate”
means, for any Interest Period with respect to any Eurocurrency Rate Loan:


 


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


 


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


 


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


 


(d)           the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate that appears on the Telerate
page 248 (or any successor thereto) for deposits in Euros (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (Brussels time) two (2)
Business Days prior to the first day of such Interest Period, or, if different,
the date on which quotations would customarily be provided by leading banks in
the European interbank market for deposits of amounts in Euros for delivery on
the first day of such Interest Period,


 


22

















 


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


 


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


 


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


 


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


 


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


 


(a)           the sum, without duplication, of:


 


(i)            Consolidated Net
Income for such period,


 


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


 


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


 


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


 


(b)           the sum, without duplication, of:


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)        [reserved],


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


“Existing Letters of Credit”
means the letters of credit outstanding on the Closing Date and set forth on Schedule
1.01E.


 


“Facility” means
the Term Loans, the Letter of Credit Facility, the Dollar Revolving Credit
Facility or the Alternative Currency Revolving Credit Facility, as the context
may require, and are referred to collectively as the “Facilities”.


 


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


 


“Fixed Charge Coverage
Ratio” means, with respect to the Company and the Restricted
Subsidiaries on a consolidated basis, as of the end of any fiscal quarter of
the Company for the Test Period ending on such date, the ratio of (a)
Consolidated EBITDA to (b) Consolidated Fixed Charges.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


26

















 


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


 


“Governmental Authority”
means any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.


 


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


 


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


 


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


 


27

















 


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


 


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


 


“Hedge Bank”
means any Person that is a
Lender or an Affiliate of a Lender at the time it enters into a Secured Hedge
Agreement, in its capacity as a party thereto.


 


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


 


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


 


“Incremental Facility
Closing Date” has the meaning specified in Section 2.14(a).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


(f)            all Attributable Indebtedness;


 


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


 


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


 


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


 


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


 


“Indemnitees”
has the meaning specified in Section 10.05.


 


“Information”
has the meaning specified in Section 10.08.


 


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


 


“Interest Payment Date”
means, (a) as to any Loan other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date of the Facility
under which such Loan was made; provided that
if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates 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 of the Facility under which such
Loan was made.


 


“Interest Period”
means, (a) as to each Eurocurrency Rate Loan, the period commencing on the date
such Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, or to the extent available to each Lender of such Eurocurrency Rate
Loan, nine or twelve months or less than one month thereafter, as selected by
the Borrower in its Committed Loan Notice, and (b) as to Closing Date or on the
last day of the preceding Interest Period and ending on the next succeeding day
thereafter that is the last Business Day of March, June, September or December,
as the case may be; 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


 


29

















 


Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding Business
Day;


 


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


 


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


 


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


 


“IP Collateral”
means all “Intellectual Property Collateral” referred to in the Collateral
Documents and all of the other IP Rights that are or are required by the terms
hereof or of the Collateral Documents to be subject to Liens in favor of the Administrative
Agent for the benefit of the Secured Parties.


 


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


 


“IRS” means the
United States Internal Revenue Service.


 


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


 


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


 


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


 


“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.


 


30

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Loan” means an
extension of credit by a Lender to a Borrower under Article 2 in the form of a
Term Loan, a Revolving Credit Loan or a Swing Line Loan.


 


31














 


“Loan Documents”
means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents and (v) each Letter of Credit Application.


 


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


 


“Management Stockholders”
means the members of management of the Borrower or any of its Subsidiaries who
are investors in the Borrower.


 


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


 


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


 


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


 


“Maturity Date”
means (a) with respect to the Revolving Credit Facilities, the sixth anniversary
of the Closing Date and (b) with respect to the Term Loans, the seventh
anniversary of the Closing Date; provided that
if either such day is not a Business Day, the Maturity Date shall be the
Business Day immediately preceding such day.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Net Cash Proceeds”
means:


 


(a)           with respect to the Disposition of any asset
by the Borrower or any Restricted Subsidiary or any Casualty Event, the excess,
if any, of (i) the sum of cash and Cash Equivalents received in connection with
such Disposition or Casualty Event (including


 


32

















 


any cash (whether in Dollars or
an Alternative Currency) or Cash Equivalents received by way of deferred
payment pursuant to, or by monetization of, a note receivable or otherwise, but
only as and when so received and, with respect to any Casualty Event, any
insurance proceeds or condemnation awards in respect of such Casualty Event
actually received by or paid to or for the account of the Borrower or any
Restricted Subsidiary) over (ii) the sum of (A) the principal amount, premium
or penalty, if any, interest and other amounts on any Indebtedness that is
secured by the asset subject to such Disposition or Casualty Event and that is
required to be repaid (and is timely repaid) in connection with such
Disposition or Casualty Event (other than Indebtedness under the Loan
Documents), (B) the out-of-pocket expenses (including attorneys’ fees,
investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes,
other customary expenses and brokerage, consultant and other customary fees)
actually incurred by the Borrower or such Restricted Subsidiary in connection
with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated
to be actually payable in connection therewith, and (D) any reserve for adjustment
in respect of (x) the sale price of such asset or assets established in
accordance with GAAP and (y) any liabilities associated with such asset or
assets and retained by the Borrower or any Restricted Subsidiary after such
sale or other disposition thereof, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction and it being
understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents
(i) received upon the Disposition of any non-cash consideration received by the
Borrower or any Restricted Subsidiary in any such Disposition and (ii) upon the
reversal (without the satisfaction of any applicable liabilities in cash in a
corresponding amount) of any reserve described in clause (D) of the preceding
sentence or, if such liabilities have not been satisfied in cash and such
reserve is not reversed within three hundred and sixty-five (365) days after
such Disposition or Casualty Event, the amount of such reserve; provided that (x) no net cash proceeds calculated in
accordance with the foregoing realized in a single transaction or series of
related transactions shall constitute Net Cash Proceeds unless such net cash proceeds
shall exceed a Dollar Amount of $5,000,000and (y) no such net cash proceeds
shall constitute Net Cash Proceeds under this clause (a) in any fiscal year
until the aggregate amount of all such net cash proceeds in such fiscal year
shall exceed a Dollar Amount of $15,000,000 (and thereafter only net cash
proceeds in excess of such amount shall constitute Net Cash Proceeds under this
clause (a)); and


 


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


 


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


 


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


 


33

















 


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


 


“Note” means a
Term Note, a Dollar Revolving Credit Note or an Alternative Currency Revolving
Credit Note, as the context may require.


 


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


 


“Not Otherwise Applied”
means, with reference to any amount of Net Cash Proceeds of any transaction or
event or of Excess Cash Flow that is proposed to be applied to a particular use
or transaction, that such amount (a) was not required to be applied to prepay
the Loans pursuant to Section 2.05(b) and (b) was not (or is not simultaneously
being) applied to anything other than that such particular use or transaction.


 


“NPL” means the
National Priorities List under CERCLA.


 


“Obligations”
means all (x) advances to, and debts, liabilities, obligations, covenants and duties
of, any Loan Party and its Subsidiaries arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or Subsidiary
of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding, (y) obligations of any Loan Party and its
Subsidiaries arising under any Secured Hedge Agreement, and (z) Cash Management
Obligations. Without limiting the generality of the foregoing, the Obligations
of the Loan Parties under the Loan Documents (and of their Subsidiaries to the extent
they have obligations under the Loan Documents) include (a) the obligation (including
guarantee obligations) to pay principal, interest, Letter of Credit
commissions, reimbursement obligations, charges, expenses, fees, Attorney
Costs, indemnities and other amounts payable by any Loan Party or its
Subsidiaries under any Loan Document and (b) the obligation of any Loan Party
or any of its Subsidiaries to reimburse any amount in respect of any of the
foregoing that any Lender, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party or such Subsidiary.


 


“Orbitz IPO”
means the issuance by the Borrower on the Closing Date of its common Equity
Interests in an underwritten public offering.


 


“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.


 


34

















 


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


 


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


 


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


 


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


 


“Parent” means
Travelport LLC or any Subsidiary of Travelport LLC that is not, in each case,
the Borrower or one of the Borrower’s Subsidiaries.


 


“Parent Distribution”
has the meaning specified in the preliminary statement hereto.


 


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


 


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


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


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


 


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


 


35

















 


“Permitted Equity Issuance”
means any sale or issuance of any Qualified Equity Interests of the Borrower to
the extent permitted hereunder.


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Pro Forma Basis”,
“Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any
test or covenant hereunder, that (A) if compliance for a Test Period ending on
or before December 31, 2007 is being determined, the Transaction shall have
been deemed to have been consummated on the first day of such applicable Test
Period, (B) to the extent applicable, the Pro Forma Adjustment shall have been
made and (C) all Specified Transactions and the following transactions in connection
therewith shall be deemed to have occurred


 


37

















 


as of the first day of the applicable period
of measurement in such test or covenant: 
(a) income statement items (whether positive or negative) attributable
to the property or Person subject to such Specified Transaction, (i) in the
case of a Disposition of all or substantially all Equity Interests in any
Subsidiary of the Borrower or any division, product line, or facility used for
operations of the Borrower or any of its Subsidiaries, shall be excluded, and
(ii) in the case of a Permitted Acquisition or Investment described in the
definition of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by the Borrower or
any of the Restricted Subsidiaries in connection therewith and if such
Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined
by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; provided
that, without limiting the application of the Pro Forma Adjustment pursuant to
(A) above, the foregoing pro forma adjustments may be applied to any such test
or covenant solely to the extent that such adjustments are consistent with the
definition of Consolidated EBITDA and give effect to events (including
operating expense reductions) that are (i) (x) directly attributable to such
transaction, (y) expected to have a continuing impact on the Borrower and the
Restricted Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Request for Credit Extension”
means (a) with respect to a Borrowing, conversion or continuation of Term Loans
or Revolving Credit Loans, a Committed Loan Notice, (b)


 


38

















 


with respect to an L/C Credit Extension, a
Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.


 


“Required Lenders”
means, as of any date of determination, Lenders having more than 50% of the sum
of the (a) Total Outstandings (with the aggregate Dollar Amount of each Lender’s
risk participation and funded participation in Dollar L/C Obligations and Swing
Line Loans being deemed “held” by such Lender for purposes of this definition),
(b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit
Commitments; provided that the unused Term
Commitment and unused Revolving Credit Commitment of, and the portion of the
Total Outstandings held or deemed held by, any Defaulting Lender or the
Borrower or any Affiliate thereof shall be excluded for purposes of making a
determination of Required Lenders.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Revolving Credit
Commitments” means the collective reference to the Dollar Revolving
Credit Commitment and the Alternative Currency Revolving Credit Commitment.  The initial aggregate amount of the Revolving
Credit Commitments is $75,000,000.


 


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


 


39

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Securities Act”
means the Securities Act of 1933.


 


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


 


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


 


“Senior Secured Leverage
Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt as of such date that is secured by a Lien less the amount of any Indebtedness as of such date that is
subordinated by the terms thereof in right of payment to the Obligations to (b)
Consolidated EBITDA for the Test Period most recently ended on or prior to such
date.


 


40

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


“Swing Line Sublimit”
means an amount equal to the lesser of (a) $10,000,000 and (b) the aggregate
Dollar Amount of the Dollar Revolving Credit Commitments.  The Swing Line Sublimit is part of, and not
in addition to, the Dollar Revolving Credit Commitments.


 


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


 


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


 


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


 


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


 


“Term Commitment”
means, as to each Term Lender, its obligation to make a Term Loan to the
Borrower pursuant to Section 2.01(a) in an aggregate Dollar Amount not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01(a) under
the caption “Term Commitment” or in the Assignment and Assumption pursuant to
which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement.  The initial aggregate amount of the Term Commitments
is $600,000,000.


 


“Term Lender”
means, at any time, any Lender that has a Term Commitment or a Term Loan at
such time.


 


“Term Loan”
means a Loan made pursuant to Section 2.01(a).


 


“Term Note”
means a promissory note of the Borrower payable to any Term Lender or its registered
assigns, in substantially the form of Exhibit C-1 hereto, evidencing the
aggregate Indebtedness of the Borrower to such Term Lender resulting from the
Term Loans made by such Term Lender.


 


“Test Period” in
effect at any time shall mean the most recent period of four consecutive fiscal
quarters of Holdings ended on or prior to such time (taken as one accounting period)
in respect of which financial statements for each quarter or fiscal year in
such period have been or are required to be delivered pursuant to Section
6.01(a) or (b); provided that, prior to the first
date that financial statements have been or are required to be delivered
pursuant to Section 6.01(a) or (b), the Test Period in effect shall be the period
of four consecutive fiscal quarters of the Borrower for which financial
statements are then available.  A Test
Period may be designated by reference to the last day thereof (i.e., the “March
31, 2008 Test Period” refers to the period of four consecutive fiscal quarters
of Holdings ended March 31, 2008), and a Test Period shall be deemed to end on
the last day thereof.


 


“Threshold Amount”
means $10,000,000.


 


43

















 


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


 


“Total Leverage Ratio”
means, as of any date of determination, the ratio of (a) Consolidated
Total Debt as of such date to (b) Consolidated EBITDA for the Test Period most
recently ended on or prior to such date.


 


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


 


“Transaction”
means, collectively, (a) the consummation of the Orbitz IPO, (b) the payment of
the Parent Distribution, (c) funding of the Loans on the Closing Date,
(d) the consummation of any other transactions in connection with the
foregoing, and (e) the payment of the fees and expenses incurred in connection
with any of the foregoing.


 


“Transaction Expenses”
means any fees or expenses incurred or paid by the Borrower or any Restricted
Subsidiary in connection with the Transaction, this Agreement and the other
Loan Documents and the transactions contemplated hereby and thereby.


 


“Travelport Debt Financing
Agreements” means (a) the indentures relating to (i) $300,000,000 in
aggregate principal amount of Parent’s 117/8% senior subordinated notes due 2016, (ii) €160,000,000 in
aggregate principal amount of Parent’s 107/8% senior euro fixed rate notes due 2016, (iii)
$450,000,000 in aggregate principal amount of Parent’s 97/8% senior dollar fixed rate notes due 2014, (iv) $150,000,000 in
aggregate principal amount of Parent’s dollar floating rate senior unsecured
notes due 2014 and (v) €235,000,000 in aggregate principal amount of Parent’s
euro floating rate senior unsecured notes due 2014 and (b) any full or partial
refinancing or replacement of any of the foregoing to the extent that the
restrictions contained in such refinancing or replacement are not materially
more onerous to the Borrower and its Subsidiaries than the Indebtedness being
so refinanced or replaced.


 


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


 


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


 


“Unaudited Financial
Statements” has the meaning specified in Section 4.01(e).


 


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


 


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


 


44

















 


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


 


“Unrestricted Subsidiary”
means (i) each Subsidiary of the Borrower listed on Schedule 1.01C and
(ii) any Subsidiary of the Borrower designated by the board of directors of the
Borrower as an Unrestricted Subsidiary pursuant to Section 6.14 subsequent to
the date hereof, and any Subsidiary of such Subsidiary.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


SECTION 1.03       Accounting Terms.


 


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


 


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


 


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


 


SECTION 1.05       References to
Agreements, Laws, Etc.  Unless
otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
permitted by any Loan Document; and (b) references to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.


 


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


 


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


 


SECTION 1.08       Currency Equivalents
Generally.


 


(a)           Any amount specified in this Agreement
(other than in Articles II, IX and X or as set forth in paragraph (b) of this
Section) or any of the other Loan Documents to be in Dollars shall also include
the equivalent of such amount in any currency other than Dollars, such


 


46

















 


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


 


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


 


ARTICLE II


 


The Commitments and Credit Extensions


 


SECTION 2.01       The Loans.


 


(a)           The Term
Borrowings.  Subject to the
terms and conditions set forth in this Agreement, each Term Lender severally
agrees to make to the Borrower a single loan denominated in Dollars in a Dollar
Amount equal to such Term Lender’s Term Commitment on the Closing Date.  Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed. 
Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.


 


(b)           [Reserved].


 


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


 


47

















 


Amount of all Dollar L/C Obligations, plus such Lender’s Pro Rata Share
of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Dollar Revolving Credit Commitment; and (ii) each Alternative Currency
Revolving Credit Lender severally agrees to make loans denominated in an
Alternative Currency or Dollars to the Borrower as elected by the Borrower
pursuant to Section 2.02 (each such loan, an “Alternative
Currency Revolving Credit Loan”) from time to time, on any Business
Day following the Closing Date until the Maturity Date, in an aggregate Dollar
Amount not to exceed at any time outstanding the amount of such Lender’s
Alternative Currency Revolving Credit Commitment; provided
that after giving effect to any Alternative Currency Revolving Credit
Borrowing, the aggregate Outstanding Amount of the Alternative Currency Revolving
Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Alternative Currency L/C Obligations shall not exceed such
Lender’s Alternative Currency Revolving Credit Commitment.  Within the limits of each Lender’s Revolving
Credit Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01(c), prepay under Section 2.05, and
reborrow under this Section 2.01(c). 
Dollar Revolving Credit Loans and Alternative Currency Revolving Credit
Loans denominated in Dollars may be Base Rate Loans or Eurocurrency Rate Loans,
as further provided herein, and Alternative Currency Revolving Credit Loans
denominated in Alternative Currency must be Eurocurrency Rate Loans, as further
provided herein.


 


SECTION 2.02       Borrowings, Conversions
and Continuations of Loans.


 


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


 


48

















 


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


 


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Pro Rata Share of the applicable Class of Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation described in Section
2.02(a).  In the case of each Borrowing,
each Appropriate Lender shall make the amount of its Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable
currency not later than 1:00 p.m., in the case of any Loan denominated in
Dollars, and not later than 1:00 p.m. (London time) in the case of any Loan in
an Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice.  Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of UBS AG, Stamford Branch with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided that
if, on the date the Committed Loan Notice with respect to such Borrowing is
given by the Borrower, there are Swing Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to
the payment in full of any such L/C Borrowings, second, to the payment in full
of any such Swing Line Loans, and third, to the Borrower as provided above.


 


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


 


(d)           The Administrative Agent shall promptly
notify the Borrower and the Lenders of the interest rate applicable to any
Interest Period for Eurocurrency Rate Loans upon determination of such interest
rate.  The determination of the Eurocurrency
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error.  At any time that Base Rate


 


49

















 


Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in UBS AG, Stamford Branch prime rate
used in determining the Base Rate promptly following the public announcement of
such change.


 


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


 


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


 


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


 


50

















 


SECTION 2.03       Letters of Credit.


 


(a)           The Letter
of Credit Commitments.


 


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


 


(ii)           Subject
to the terms and conditions set forth herein, (A)(1) each Dollar L/C Issuer
agrees, in reliance upon the agreements of the other Dollar Revolving Credit
Lenders set forth in this Section 2.03, (x) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date applicable to Dollar Letters of Credit issued under the Dollar
Revolving Credit Facility, to issue Dollar Letters of Credit for the account of
the Borrower (provided, that any Dollar Letter
of Credit may be for the benefit of any Subsidiary of the Borrower) and to
amend or renew Dollar Letters of Credit previously issued by it, in accordance
with Section 2.03(b), and (y) to honor drafts under the Dollar Letters of
Credit and (2) the Dollar Revolving Credit Lenders severally agree to
participate in Dollar Letters of Credit issued pursuant to this Section 2.03,
(B)(1) each Alternative Currency L/C Issuer agrees, in reliance upon the agreements
of the other Alternative Currency Revolving Credit Lenders set forth in this
Section 2.03, (x) from time to time on any Business Day during the period from
the Closing Date until the Letter of Credit Expiration Date applicable to Alternative
Currency Letters of Credit issued under the Alternative Currency Revolving
Credit Facility, to issue Alternative Currency Letters of Credit denominated in
an Alternative Currency or Dollars for the account of the Borrower (provided, that any Alternative Currency Letter of Credit may
be for the benefit of any Subsidiary of the Borrower) and to amend or renew
Alternative Currency Letters of Credit previously issued by it, in accordance
with Section 2.03(b), and (y) to honor drafts under the Alternative Currency
Letters of Credit and (2) the Alternative Currency Revolving Credit Lenders
severally agree to participate in Alternative Currency Letters of Credit issued
pursuant to this Section 2.03; provided that
no L/C Issuer shall be obligated to make any L/C Credit Extension with respect
to any Letter of Credit, and no Lender shall be obligated to participate in any
Letter of Credit if as of the date of such L/C Credit Extension, (w) the Dollar
Revolving Credit Exposure of any Lender would exceed such Lender’s Dollar
Revolving Credit Commitment, (x) the Alternative Currency Revolving Credit
Exposure of any Lender would exceed such Lender’s Alternative Currency
Revolving Credit Commitment, (y) the Outstanding Amount of the Dollar L/C
Obligations would exceed the Dollar Revolving Credit Commitment or (z) the
Outstanding Amount of the Alternative Currency L/C Obligations would exceed the
Alternative Currency Revolving Credit Commitment.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.  Notwithstanding any such specification or
deemed specification, the Borrower may request in writing that a Letter of
Credit issued under either Revolving Credit Facility be deemed to be issued
under any other Facility (and such redesignation shall become effective on the
date of receipt by the Administrative Agent of such written request which shall
be a Business Day) so long as if at the time of the Administrative Agent’s
receipt of such request the issuance of such a Letter of Credit would be permitted
under such Facility by the foregoing provisions of this paragraph.


 


51

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


52

















 


drawing thereunder; (f) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; (g) the
currency in which the request Letter of Credit will be denominated; and (h)
such other matters as the relevant L/C Issuer may reasonably request.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the relevant L/C Issuer
(1) the Letter of Credit to be amended; (2) the proposed date of amendment
thereof (which shall be a Business Day); (3) the nature of the proposed
amendment; and (4) such other matters as the relevant L/C Issuer may reasonably
request.


 


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


 


(iii)          If
the Borrower so requests in any applicable Letter of Credit Application, the
relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic
renewal provisions (each, an “Auto-Renewal Letter of
Credit”); provided that
any such Auto-Renewal Letter of Credit must permit the relevant L/C Issuer to
prevent any such renewal at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Nonrenewal Notice
Date”) in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. 
Unless otherwise directed by the relevant L/C Issuer, the Borrower shall
not be required to make a specific request to the relevant L/C Issuer for any
such renewal.  Once an Auto-Renewal
Letter of Credit has been issued, the applicable Lenders shall be deemed to
have authorized (but may not require) the relevant L/C Issuer to permit the
renewal of such Letter of Credit at any time to an expiry date not later than
the applicable Letter of Credit Expiration Date; provided
that the relevant L/C Issuer shall not permit any such renewal if (A) the
relevant L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms hereof
(by reason of the provisions of Section 2.03(a)(iii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is five (5) Business Days before the Nonrenewal Notice Date from the
Administrative Agent, any Revolving Credit Lender or the Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then
satisfied.


 


53

















 


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


 


(c)           Drawings and
Reimbursements; Funding of Participations.


 


(i)            Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the relevant L/C Issuer shall notify promptly the
Borrower and the Administrative Agent thereof. 
Not later than 11:00 a.m. on the Business Day immediately following the
date of any payment by an L/C Issuer under a Letter of Credit (each such date,
an “Honor Date”), the Borrower shall
reimburse such L/C Issuer through the Administrative Agent in an amount equal
to the amount of such drawing.  If the
Borrower fails to so reimburse such L/C Issuer by such time, the Administrative
Agent shall promptly notify each Appropriate Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the Dollar Amount
thereof in the case of an Alternative Currency) (the “Unreimbursed
Amount”), and the amount of such Appropriate Lender’s Pro Rata Share
thereof.  In such event, (x) in the case
of an Unreimbursed Amount under a Dollar Letter of Credit, the Borrower shall
be deemed to have requested a Dollar Revolving Credit Borrowing of Base Rate
Loans and (y) in the case of an Unreimbursed Amount under an Alternative
Currency Letter of Credit, the Borrower shall be deemed to have requested an
Alternative Currency Revolving Credit Borrowing of Eurocurrency Rate Loans, in
each case 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 Eurocurrency Rate Loans or Base Rate Loans, but
subject to the amount of the unutilized portion of the Revolving Credit
Commitments of the Appropriate Lenders and Revolving Credit Lenders, and
subject to the conditions set forth in Section 4.02 (other than the delivery of
a Committed Loan Notice).  Any notice
given by an L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


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


 


54

















 


Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the relevant L/C Issuer.


 


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


 


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


 


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


 


(vi)          If
any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the relevant L/C Issuer any amount required to be paid by
such


 


55

















 


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


 


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


 


(viii)        [reserved].


 


(ix)           [reserved].


 


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


 


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


 


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


 


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


 


(iii)          any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any


 


56

















 


statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


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


 


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


 


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


 


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


 


(e)           Role of L/C Issuers.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the relevant L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.  None of the L/C Issuers, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of
any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted
in connection herewith at the request or with the approval of the Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided that
this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuers, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (iii) of
Section 2.03(e); provided that anything in such
clauses to the contrary notwithstanding, the Borrower may have a claim against
an L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages


 


57

















 


suffered by the Borrower which the Borrower proves were caused by such
L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s
willful or grossly negligent failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, each L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and no L/C Issuer shall be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


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


 


58

















 


is cured or waived and no other Event of Default is then occurring and
continuing, the amount of any Cash Collateral shall be refunded to the Borrower.


 


(g)           Letter of
Credit Fees.


 


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


 


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


 


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


 


59

















 


and other standard costs and charges, of such L/C Issuer relating to
letters of credit as from time to time in effect.  Such customary fees and standard costs and
charges are due and payable within ten (10) Business Days of demand and are
nonrefundable.


 


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


 


(j)            Addition of
an L/C Issuer.


 


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


 


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


 


SECTION 2.04       Swing Line Loans.


 


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


 


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which


 


60

















 


may be given by telephone.  Each
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $100,000 (and any
amount in excess of $100,000 shall be an integral multiple of $25,000), and
(ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Dollar Revolving Credit Lender) prior to 2:00 p.m. on the
date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth in
the first proviso to the first sentence of Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.


 


(c)           Refinancing
of Swing Line Loans.


 


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


 


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


 


61

















 


to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such
participation.


 


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


 


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


 


(d)           Repayment of
Participations.


 


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


 


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


 


(e)           Interest for Account of
Swing Line Lender.  The Swing
Line Lender shall be responsible for invoicing the Borrower for interest on the
Swing Line Loans.  Until each Dollar
Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant
to this Section 


 


62

















 


2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan,
interest in respect of such Pro Rata Share shall be solely for the account of
the Swing Line Lender.


 


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


 


SECTION 2.05       Prepayments.


 


(a)           Optional.


 


(i)            The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Term Loans and Revolving Credit Loans in whole or in
part without premium or penalty; provided that
(1) such notice must be received by the Administrative Agent not later than
12:00 p.m. (New York, New York time or London, England time in the case of
Loans denominated in an Alternative Currency) (A) three (3) Business Days prior
to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars,
(B) four (4) Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in an Alternative Currency and (C) on the date of prepayment
of Base Rate Loans; (2) any prepayment of Eurocurrency Rate Loans shall be in a
principal amount of (x) $2,500,000 or a whole multiple of $500,000 in excess
thereof in the case of Term Loans, (y) €2,500,000 or a whole multiple of
€500,000 in excess thereof in the case of Alternative Currency Loans denominated
in Euros or (z) £2,500,000 or a whole multiple of £500,000 in excess thereof in
the case of Alternative Currency Loans denominated in Sterling; and (3) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding (it being understood that Base
Rate Loans shall be denominated in Dollars only).  Each such notice shall specify the date and
amount of such prepayment and the Class(es) and Type(s) of Loans to be
prepaid.  The Administrative Agent will
promptly notify each Appropriate Lender of its receipt of each such notice, and
of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by a Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05.  Each prepayment of principal of, and interest
on, Alternative Currency Loans shall be made in the relevant Alternative
Currency or Dollars, as applicable (even if Borrower is required to convert currency
to do so).  Each prepayment of the Loans
pursuant to this Section 2.05(a) shall be paid to the Appropriate Lenders in accordance
with their respective Pro Rata Shares.


 


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


 


63

















 


and the payment amount specified in such notice shall be due and
payable on the date specified therein. 
All Swing Line Loans shall be denominated in Dollars only.


 


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


 


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


 


(b)           Mandatory.


 


(i)            Within
five (5) Business Days after financial statements have been delivered pursuant
to Section 6.01(a) and the related Compliance Certificate has been delivered
pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate
Dollar Amount of Term Loans equal to (A) 50% (such percentage as it may be
reduced as described below, the “ECF Percentage”)
of Excess Cash Flow, if any, for the fiscal year covered by such financial statements
(commencing with the fiscal year ended December 31, 2008) minus (B) the
sum of (i) all voluntary prepayments of Term Loans during such fiscal year and
(ii) all voluntary prepayments of Revolving Credit Loans during such fiscal
year to the extent the Revolving Credit Commitments are permanently reduced by
the amount of such payments, in the case of each of the immediately preceding
clauses (i) and (ii), to the extent such prepayments are not funded with the
proceeds of Indebtedness; provided that
(x) the ECF Percentage shall be 25% if the Total Leverage Ratio for the fiscal
year covered by such financial statements was less than 2.5:1 and greater than
or equal to 1.5:1 and (y) the ECF Percentage shall be 0% if the Total Leverage
Ratio for the fiscal year covered by such financial statements was less than
1.5:1.


 


(ii)           (A)  If (x) the Borrower or any Restricted
Subsidiary Disposes of any property or assets (other than any Disposition of
any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the
extent constituting a Disposition by any Restricted Subsidiary to a Loan
Party), (e), (g) or (h)) or (y) any Casualty Event occurs, which in the
aggregate results in the realization or receipt by the Borrower or such
Restricted Subsidiary of Net Cash Proceeds, the Borrower shall cause to be
prepaid on or prior to the date which is ten (10) Business Days after the date
of the realization or receipt of such Net Cash Proceeds an aggregate Dollar
Amount of Term Loans equal to 100% of all Net Cash Proceeds realized or
received; provided that no such prepayment shall
be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion
of such Net Cash Proceeds that the Borrower shall have, on or prior to such
date, given written notice to the Administrative Agent of its intent to
reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be
provided if no Event of Default has occurred and is then continuing);


 


(B)           With respect to any Net
Cash Proceeds realized or received with respect to any Disposition (other than
(I) any Disposition specifically excluded from the application of Section
2.05(b)(ii)(A) or (II) any Casualty Event, at the option of the Borrower, the
Borrower may reinvest all or any portion of such Net Cash Proceeds in assets
useful for the business of the Borrower and/or its Subsidiaries within (x)
fifteen (15) months following receipt of such Net Cash


 


64

















 


Proceeds or (y) if the Borrower enters into a legally binding
commitment to reinvest such Net Cash Proceeds within fifteen (15) months following
receipt thereof, within one hundred and eighty (180) days of the date of such
legally binding commitment; provided that
(i) so long as an Event of Default shall have occurred and be continuing, the
Borrower (x) shall not be permitted to make any such reinvestments (other than
pursuant to a legally binding commitment that the Borrower entered into at a
time when no Event of Default is continuing) and (y) shall not be required to
apply such Net Cash Proceeds which have been previously applied to prepay
Revolving Credit Loans to the prepayment of Term Loans until such time as the
relevant investment period has expired and no Event of Default is continuing
and (ii) if any Net Cash Proceeds are no longer intended to be or cannot be so
reinvested at any time after delivery of a notice of reinvestment election, an
amount equal to any such Net Cash Proceeds shall be applied within five (5)
Business Days after the Borrower reasonably determines that such Net Cash
Proceeds are no longer intended to be or cannot be so reinvested to the prepayment
of the Term Loans as set forth in this Section 2.05.


 


(iii)          If
the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness not
expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower
shall cause to be prepaid an aggregate Dollar Amount of Term Loans equal to
100% of all Net Cash Proceeds received therefrom on or prior to the date which
is five (5) Business Days after the receipt of such Net Cash Proceeds.


 


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


 


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


 


(vi)          The
Borrower shall notify the Administrative Agent in writing of any mandatory prepayment
of Term Loans required to be made pursuant to clauses (i) through (iii) of this
Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment.  Each such notice shall specify the date of
such prepayment and provide a reasonably detailed calculation 


 


65

















 


of the amount of such prepayment. 
The Administrative Agent will promptly notify each Appropriate Lender of
the contents of the Borrower’s prepayment notice and of such Appropriate
Lender’s Pro Rata Share of the prepayment. 
Each Appropriate Lender may reject all or a portion of its Pro Rata
Share of any mandatory prepayment of Term Loans required to be made pursuant to
clauses (i) through (iii) of this Section 2.05(b) by providing written notice
(each, a “Rejection Notice”) to the
Administrative Agent and the Borrower no later than 5:00 p.m. (New York time)
one Business Day after the date of such Lender’s receipt of notice from the
Administrative Agent regarding such prepayment; provided
that any Rejection Notice may be rejected by the Borrower by 5:00 p.m. (New
York time) on the day of its receipt and shall thereupon become
ineffective.  Each Rejection Notice from
a given Lender shall specify the principal amount of the mandatory repayment of
Term Loans to be rejected by such Lender. 
If a Lender fails to deliver a Rejection Notice to the Administrative
Agent within the time frame specified above or such Rejection Notice fails to
specify the principal amount of the Term Loans to be rejected, any such failure
will be deemed an acceptance of the total amount of such mandatory repayment of
Term Loans.  In the event a Lender
rejects all or any portion of its Pro Rata Share of any mandatory prepayment of
Term Loans required pursuant to clauses (i) through (iii) of this Section
2.05(b), the rejected portion of such Lender’s Pro Rata Share of such
prepayment shall be retained by the Borrower.


 


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


 


(c)           Interest, Funding Losses,
Etc.  All prepayments under
this Section 2.05 shall be accompanied by all accrued interest thereon,
together with, in the case of any such prepayment of a Eurocurrency Rate Loan
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.05.


 


SECTION 2.06       Termination or Reduction
of Commitments.


 


(a)           Optional.  The Borrower may, upon written notice to the
Administrative Agent, terminate the unused Commitments of any Class, or from
time to time permanently reduce the unused Commitments of any Class; provided that (i) any such notice shall be received by the
Administrative Agent three (3) Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $500,000 or any whole multiple of $100,000 in excess thereof and (iii) if,
after giving effect to any reduction of the Commitments, the Swing Line
Sublimit exceeds the amount of the Dollar Revolving Credit Facility,


 


66

















 


such sublimit shall be automatically reduced by the amount of such
excess.  The amount of any such
Commitment reduction shall not be applied to the Swing Line Sublimit unless
otherwise specified by the Borrower. 
Notwithstanding the foregoing, the Borrower may rescind or postpone any
notice of termination of the Commitments if such termination would have
resulted from a refinancing of all of the Facilities, which refinancing shall
not be consummated or otherwise shall be delayed.


 


(b)           Mandatory.  The Term Commitment of each Term Lender shall
be automatically and permanently reduced to $0 upon the making of such Term
Lender’s Term Loans pursuant to Section 2.01(a).  The Revolving Credit Commitments shall
terminate on the Maturity Date for such Facility.


 


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


 


SECTION 2.07       Repayment of Loans.


 


(a)           Term Loans.  The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Lenders (i) on the
last Business Day of each March, June, September and December, commencing with
the last Business Day of December 2007, an aggregate Dollar Amount equal to
0.25% of the aggregate Dollar Amount of all Term Loans outstanding on the Closing
Date (which payments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05)
and (ii) on the Maturity Date for the Term Loans, the aggregate principal
amount of all Term Loans outstanding on such date.


 


(b)           [Reserved].


 


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


 


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


 


(e)           [Reserved].


 


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


 


67

















 


SECTION 2.08       Interest.


 


(a)           Subject to the provisions of Section
2.08(b), (i) each Eurocurrency Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Rate plus
(in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State) the
Mandatory Cost; (ii) each Base Rate Loan 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 for Dollar Revolving Credit Loans.  For the avoidance of doubt, each Alternative
Currency Loan denominated in Alternative Currency shall be a Eurocurrency Rate
Loan.


 


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


 


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


 


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


 


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


 


(a)           Commitment Fee.  The Borrower shall pay to the Administrative
Agent for the account of each (i) Dollar Revolving Credit Lender in accordance
with its Pro Rata Share, a commitment fee equal to the Applicable Rate with
respect to commitment fees times the actual daily amount by which the aggregate
Dollar Revolving Credit Commitment exceeds the sum of (A) the Outstanding
Amount of Dollar Revolving Credit Loans and (B) the Outstanding Amount of
Dollar L/C Obligations; provided that
any commitment fee accrued with respect to any of the Dollar Revolving
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender except to
the extent that such commitment fee shall otherwise have been due and payable
by the Borrower prior to such time; and provided  further that no commitment fee shall accrue on any of the
Dollar Revolving Credit Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender and (ii) Alternative Currency Revolving Credit
Lender in accordance with its Pro Rata Share, a commitment fee equal to the
Applicable Rate with respect to commitment fees times the actual daily amount
by which the aggregate Alternative Currency Revolving Credit Commitment exceeds
the sum of (A) the Outstanding Amount of Alternative Currency Revolving 


 


68

















 


Credit Loans and (B) the Outstanding Amount
of Alternative Currency L/C Obligations; provided that
any commitment fee accrued with respect to any of the Alternative Currency
Revolving Commitments of a Defaulting Lender during the period prior to the
time such Lender became a Defaulting Lender and unpaid at such time shall not
be payable by the Borrower so long as such Lender shall be a Defaulting Lender
except to the extent that such commitment fee shall otherwise have been due and
payable by the Borrower prior to such time; and provided
further that no commitment fee shall
accrue on any of the Alternative Currency Revolving Credit Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.  The commitment fees shall accrue at all times
from the Closing Date until the Maturity Date for the Revolving Credit
Facilities, including at any time during which one or more of the conditions in
Article 4 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 Maturity Date
for the Revolving Credit Facilities.  The
commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.


 


(b)           [Reserved].


 


(c)           [Reserved].


 


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


 


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


 


SECTION 2.11       Evidence of Indebtedness.


 


(a)           The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and evidenced by one or more entries in the Register maintained by the
Administrative Agent, acting solely for purposes of Treasury Regulation Section
5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of
business.  The accounts or records
maintained by the Administrative Agent and each Lender shall be


 


69

















 


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


 


(b)           In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or records and, in the
case of the Administrative Agent, entries in the Register, evidencing the
purchases and sales by such Lender of participations in Letters of Credit and
Swing Line Loans.  In the event of any
conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


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


 


SECTION 2.12       Payments Generally.


 


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


 


70

















 


in the case of payments in an Alternative Currency, shall in each case
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.


 


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


 


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


 


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


 


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


 


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


 


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(d)           If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article 2, and such funds are not made
available to the Borrower by the Administrative Agent because the conditions to
the applicable Credit Extension set forth in Article 4 are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender,
without interest.


 


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


 


(f)            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.


 


(g)           Whenever any payment received by the
Administrative Agent under this Agreement or any of the other Loan Documents is
insufficient to pay in full all amounts due and payable to the Administrative
Agent and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of
priority set forth in Section 8.04.  If
the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the manner in which such funds are
to be applied, the Administrative Agent may, but shall not be obligated to,
elect to distribute such funds to each of the Lenders in accordance with such
Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans
outstanding at such time and (b) the Outstanding Amount of all L/C Obligations
outstanding at such time, in repayment or prepayment of such of the outstanding
Loans or other Obligations then owing to such Lender.


 


SECTION 2.13       Sharing of Payments.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
or the participations in L/C Obligations and Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the
participations in L/C Obligations or Swing Line Loans held by them, as the case
may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of


 


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such paying Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon.  The
Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by applicable Law, exercise all its
rights of payment (including the right of setoff, but subject to Section 10.09)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 2.13 and will in each case notify
the Lenders following any such purchases or repayments.  Each Lender that purchases a participation
pursuant to this Section 2.13 shall from and after such purchase have the right
to give all notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the Obligations purchased
to the same extent as though the purchasing Lender were the original owner of
the Obligations purchased.


 


SECTION 2.14       Incremental Credit
Extensions.


 


(a)           The Borrower may at any time or from time to
time after the Closing Date, by notice to the Administrative Agent (whereupon
the Administrative Agent shall promptly deliver a copy to each of the Lenders),
request (a) one or more additional tranches of term loans (the “Incremental Term Loans”) or (b) one or more increases in the
amount of the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”), provided
that (i) both at the time of any such request and upon the effectiveness of any
Incremental Amendment referred to below, no Default or Event of Default shall
exist and at the time that any such Incremental Term Loan is made (and after
giving effect thereto) no Default or Event of Default shall exist, (ii) the
Borrower shall be in compliance with the covenants set forth in Section 7.11
for the Test Period in effect at the applicable Incremental Facility Closing
Date (it being understood that if the applicable Incremental Facility Closing
Date is to occur prior to the date the December 31, 2007 Test Period has become
effective, the levels set forth in Section 7.11 for the December 31, 2007 Test
Period shall be deemed to apply), as determined on a Pro Forma Basis and (iii)
the Senior Secured Leverage Ratio for the Borrower would be not greater than
4.25:1, as determined on a Pro Forma Basis. 
Each tranche of Incremental Term Loans and each Revolving Commitment Increase
shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if
such amount represents all remaining availability under the limit set forth in
the next sentence).  Notwithstanding
anything to the contrary herein, the aggregate amount of the Incremental Term
Loans and the Revolving Commitment Increases shall not exceed
$150,000,000.  The Incremental Term Loans
(a) shall rank pari passu in right of payment and of security with the
Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than
the Maturity Date with respect to the Term Loans and (c) except as set forth
above, shall be treated substantially the same as the Term Loans (in each case,
including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to
Incremental Term Loans may be materially different from those of the Term Loans
to the extent such differences are reasonably acceptable to the Arrangers and
(ii) the interest rates and amortization schedule applicable to the Incremental
Term Loans shall be determined by the Borrower and the lenders thereof.  Each notice from the Borrower pursuant to
this Section shall set forth the requested amount and proposed terms of the
relevant Incremental Term Loans or Revolving Commitment Increases.  Incremental Term Loans may be made, and


 


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Revolving Commitment Increases
may be provided, by any existing Lender (and each existing Term Lender will
have the right, but not an obligation, to make a portion of any Incremental
Term Loan, and each existing Revolving Credit Lender will have the right, but
not an obligation, to provide a portion of any Revolving Commitment Increase,
in each case on terms permitted in this Section 2.14 and otherwise on
terms reasonably acceptable to the Administrative Agent) or by any other bank
or other financial institution (any such other bank or other financial
institution being called an “Additional Lender”),
provided that the Administrative Agent
shall have consented (not to be unreasonably withheld) to such Lender’s or
Additional Lender’s making such Incremental Term Loans or providing such
Revolving Commitment Increases if such consent would be required under Section 10.07(b) for
an assignment of Loans or Revolving Credit Commitments, as applicable, to such
Lender or Additional Lender. Commitments in respect of Incremental Term Loans
and Revolving Commitment Increases shall become Commitments (or in the case of
a Revolving Commitment Increase to be provided by an existing Revolving Credit
Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under
this Agreement pursuant to an amendment (an “Incremental
Amendment”) to this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrower, each Lender agreeing to provide such
Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. The Incremental Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent
and the Borrower, to effect the provisions of this Section. The effectiveness
of (and, in the case of any Incremental Amendment for an Incremental Term Loan,
the borrowing under) any Incremental Amendment shall be subject to the
satisfaction on the date thereof (each, an “Incremental
Facility Closing Date”) of each of the conditions set forth in Section 4.02
(it being understood that all references to “the date of such Credit Extension”
or similar language in such Section 4.02 shall be deemed to refer to the
effective date of such Incremental Amendment) and such other conditions as the
parties thereto shall agree.  The Borrower
will use the proceeds of the Incremental Term Loans and Revolving Commitment
Increases for any purpose not prohibited by this Agreement.  No Lender shall be obligated to provide any
Incremental Term Loans or Revolving Commitment Increases, unless it so
agrees.  Upon each increase in the
Revolving Credit Commitments pursuant to this Section, each Revolving Credit
Lender immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Lender providing a portion of
the Revolving Commitment Increase (each a “Revolving Commitment
Increase Lender”) in respect of such increase, and each such
Revolving Commitment Increase Lender will automatically and without further act
be deemed to have assumed, a portion of such Revolving Credit Lender’s participations
hereunder in outstanding Letters of Credit and Swing Line Loans such that,
after giving effect to each such deemed assignment and assumption of participations,
the percentage of the aggregate outstanding (i) participations hereunder
in Letters of Credit and (ii) participations hereunder in Swing Line Loans
held by each Revolving Credit Lender (including each such Revolving Commitment
Increase Lender) will equal the percentage of the aggregate Revolving Credit
Commitments of all Revolving Credit Lenders represented by such Revolving
Credit Lender’s Revolving Credit Commitment. 
If, on the date of such increase, there are any Revolving Credit Loans
outstanding, such Revolving Credit Loans shall on or prior to the effectiveness
of such Revolving Commitment Increase be prepaid from the proceeds of
additional Revolving Credit Loans made hereunder (reflecting such increase in
Revolving Credit Commitments), which prepayment shall be accompanied by accrued
interest on the Revolving Credit Loans being prepaid 


 


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and any costs incurred by any
Lender in accordance with Section 3.05. 
The Administrative Agent and the Lenders hereby agree that the minimum
borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant
to the immediately preceding sentence.


 


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


 


SECTION 2.15       Currency Equivalents.


 


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


 


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


 


ARTICLE III


 


Taxes, Increased Costs Protection and Illegality


 


SECTION 3.01       Taxes.


 


(a)           Except as provided in
this Section 3.01, any and all payments by the Borrower (the term Borrower
under Article III being deemed to include any Subsidiary for whose account
a Letter of Credit is issued) or any Guarantor to or for the account of any
Agent or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities (including additions to tax, penalties and interest) with respect
thereto, excluding, in the case of each Agent and each Lender, taxes imposed on
or measured by its net income (including branch profits), and franchise (and
similar) taxes imposed on it in lieu of net income taxes, by the jurisdiction
(or any political subdivision thereof) under the Laws of which such Agent or
such Lender, as the case may be, is organized or maintains a Lending Office,
and all liabilities (including additions to tax, penalties and interest) with
respect


 


75

















 


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


 


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


 


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


 


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


 


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


 


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


 


(g)           Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or
(c) with respect to such Lender it will, if requested by the 


 


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


 


SECTION 3.02       Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans, or to determine or charge interest rates based
upon the Eurocurrency Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist.  Upon receipt of such
notice, the Borrower shall upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or promptly, if such Lender may not
lawfully continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted
and all amounts due, if any, in connection with such prepayment or conversion
under Section 3.05.  Each Lender
agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.


 


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


 


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


 


(a)           If any Lender
determines that as a result of the introduction of or any change in or in the
interpretation of any Law, in each case after the date hereof, or such Lender’s
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurocurrency Rate Loans or
issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this Section 3.04(a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes indemnifiable
pursuant to Section 3.01, (ii) changes in the basis of taxation of
overall net income (including branch profits), and franchise (and similar)
taxes imposed in lieu of net income taxes, by the any jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or maintains a Lending Office, (iii) reserve requirements
contemplated by Section 3.04(c) or (iv) the requirements of the
Bank of England and the Financial Services Authority or the European Central
Bank reflected in the Mandatory Cost, other than as set forth below) or the
Mandatory Cost, as calculated hereunder, does not represent the cost to such
Lender of complying with the requirements of the Bank of England and/or the
Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining of Eurocurrency Rate Loans, then from time to
time within fifteen (15) days after demand by such Lender setting forth in
reasonable detail such increased costs (with a copy of such demand to the
Administrative Agent given in accordance with Section 3.06), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction or, if applicable, the portion of such
cost that is not represented by the Mandatory Cost.


 


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


 


(c)           The Borrower shall pay
to each Lender, (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits, additional interest on the unpaid principal amount of each
Eurocurrency Rate Loan 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 in the absence of manifest error), and (ii) as
long as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any other central banking or financial
regulatory authority imposed in respect of the maintenance of the Commitments
or the funding of the Eurocurrency Rate Loans, such additional costs (expressed
as a percentage per annum and rounded upwards, if necessary, to the nearest
five decimal places) equal to the actual costs allocated 


 


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to such Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive absent manifest error)
which in each case shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower
shall have received at least fifteen (15) days’ prior notice (with a copy to
the Administrative Agent) of such additional interest or cost from such
Lender.  If a Lender fails to give notice
fifteen (15) days prior to the relevant Interest Payment Date, such additional
interest or cost shall be due and payable fifteen (15) days from receipt of
such notice.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 3.06       Matters Applicable to
All Requests for Compensation.


 


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


 


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


 


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


 


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


 


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


 


(d)           If any Lender gives
notice to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that
gave rise to the conversion of such Lender’s Eurocurrency Rate Loans pursuant
to this Section 3.06 no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time when Eurocurrency
Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Eurocurrency Rate Loans, to the extent
necessary so that, 


 


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after giving effect thereto, all Loans held by the Lenders holding
Eurocurrency Rate Loans and by such Lender are held pro rata (as to principal
amounts, interest rate basis, and Interest Periods) in accordance with their
respective Commitments.


 


SECTION 3.07       Replacement of Lenders
under Certain Circumstances.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE IV


 


Conditions Precedent to Effectiveness and Credit Extensions


 


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


 


(a)           The
Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each in form and substance reasonably satisfactory to the Administrative
Agent and its legal counsel:


 


(i)            executed counterparts of this Agreement and each
Guaranty;


 


(ii)           a Note executed by the Borrower in favor of each
Lender that has requested a Note at least two Business Days in advance of the Closing
Date;


 


(iii)          each Collateral Document set forth on Schedule 1.01B,
duly executed by each Loan Party party thereto, together with:


 


(A)          certificates, if any,
representing the Pledged Equity referred to therein accompanied by undated
stock powers executed in blank and instruments evidencing the Pledged Debt
indorsed in blank,


 


(B)           to the extent required
under the Collateral and Guarantee Requirement, opinions of local counsel for
the Loan Parties, in states in which the Mortgaged Properties are located, with
respect to the enforceability and perfection of the Mortgages and any related
fixture filings in form and substance reasonably satisfactory to the
Administrative Agent; and,


 


(C)           evidence that all other
actions, recordings and filings that the Administrative Agent may deem
reasonably necessary to satisfy the Collateral and Guarantee Requirement shall
have been taken, completed or 


 


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otherwise provided for in a manner reasonably
satisfactory to the Administrative Agent;


 


(iv)          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 reasonably 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 or is to be a
party on the Closing Date;


 


(v)           opinion from Simpson Thacher & Bartlett
LLP, New York counsel to the Loan Parties substantially in the form of Exhibit I;


 


(vi)          a certificate signed by a
Responsible Officer
of the Borrower certifying that since December 31, 2006 a Material Adverse
Effect;


 


(vii)         a certificate attesting to the Solvency of the Loan
Parties (taken as a whole) on the Closing Date after giving effect to the
Transaction, from the Chief Financial Officer of the Borrower;


 


(viii)        evidence that all insurance (including title
insurance) required to be maintained pursuant to the Loan Documents has been
obtained and is in effect and that the Administrative Agent has been named as
loss payee and additional insured under each insurance policy with respect to
such insurance as to which the Administrative Agent shall have requested to be
so named;


 


(ix)           The Orbitz IPO shall have been consummated and the net
proceeds thereof shall have been contributed to Parent (it being understood
that an amount not in excess of $100,000,000 resulting from (w) the Net Cash
Proceeds from the Orbitz IPO plus (x) the
Net Cash Proceeds from the Term Loans minus (z)
$775,000,000 shall not be required to be contributed to Parent).  Travelport LLC shall have prepaid
Indebtedness outstanding under the Travelport Credit Agreement with the
proceeds of such contribution;


 


(x)            a Committed Loan Notice or Letter of Credit
Application, as applicable, relating to the initial Credit Extension; and


 


(xi)           copies of a recent Lien and judgment search in each
jurisdiction reasonably requested by the Collateral Agent with respect to the
Loan Parties.


 


(b)           All
fees and expenses required to be paid hereunder and invoiced before the Closing
Date shall have been paid in full in cash.


 


(c)           Prior
to or simultaneously with the Credit Extension of Term Loans, the Borrower
shall have terminated any existing indebtedness of the Borrower and its
Subsidiaries (other than Indebtedness set forth on Schedule 7.03(b))
and taken all other necessary actions such that, after giving effect to the
Transaction, the Borrower and its Subsidiaries 


 


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shall have
outstanding no Indebtedness or preferred Equity Interests other than (i) the
Loans and L/C Obligations and (ii) Indebtedness listed on Schedule 7.03(b).


 


(d)           The
Arrangers and the Lenders shall have received the Audited Financial Statements
and the audit report for such financial statements (which shall not be subject
to any qualification).


 


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


 


(f)            The
Arrangers and the Lenders shall have received the Pro Forma Financial Statements.


 


(g)           The
Administrative Agent shall have received all documentation and other
information required by bank regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including,
without limitation, the Act, requested by the Administrative Agent a reasonable
period of time prior to the Closing Date.


 


SECTION 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 Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:


 


(a)           The
representations and warranties of the Borrower and each other Loan Party contained
in Article 5 or any other Loan Document shall be true and correct in all
material respects on and as of the date of such Credit Extension; provided that, to the extent that such representations and
warranties specifically refer to an earlier date, they shall be true and
correct in all material respects as of such earlier date; provided,
further that, any representation and
warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct in all respects on such respective
dates.


 


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


 


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


 


Each Request
for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurocurrency Rate
Loans) submitted by a Borrower 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.


 


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ARTICLE V


 


Representations and Warranties


 


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


 


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


 


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


 


SECTION 5.03       Governmental
Authorization; Other Consents.  No
material approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with (a) the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement or any
other Loan Document, or for the consummation of the Transaction, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (c) the perfection or maintenance of the Liens created under
the Collateral Documents (including the priority thereof) or (d) the
exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for (i) filings necessary to perfect the
Liens on the Collateral granted by the Loan Parties in favor of the Secured
Parties, (ii) the approvals, consents, exemptions, authorizations,
actions, notices and filings which have been duly obtained, taken, given or
made and are in full force and effect and (iii) those approvals, consents,
exemptions, authorizations or other actions, 


 


86

















 


notices or filings, the failure of which to obtain or make could not
reasonably be expected to have a Material Adverse Effect.


 


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


 


SECTION 5.05       Financial Statements; No
Material Adverse Effect.


 


(a)           (i)  The Audited
Financial Statements and the Unaudited Financial Statements fairly present in
all material respects the financial condition of the Borrower and its
Subsidiaries, as of the dates thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the periods covered thereby, except as otherwise expressly noted therein.  During the period from December 31, 2006
to and including the Closing Date, there has been (i) no sale, transfer or
other disposition by the Borrower or any of its Subsidiaries of any material
part of the business or property of the Borrower or any of its Subsidiaries,
taken as a whole, and (ii) no purchase or other acquisition by or any of
its Subsidiaries of any business or property (including any Equity Interests of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its Subsidiaries, taken as a whole, in each case, which is
not reflected in the foregoing financial statements or in the notes thereto or
has not otherwise been disclosed in writing to the Administrative Agent prior
to the Closing Date.


 


(ii)     The unaudited pro forma consolidated balance sheet
of the Borrower and its Subsidiaries as at March 31, 2007 (including the
notes thereto) (the “Pro Forma Balance Sheet”)
and the unaudited pro forma consolidated statement of operations of the
Borrower and its Subsidiaries for the most recent fiscal year, the quarter
ended March 31, 2007 and the 12-month period ending on March 31, 2007
(together with the Pro Forma Balance Sheet, the “Pro Forma Financial
Statements”), copies of which have heretofore been furnished to the
Administrative Agent, have been prepared giving effect (as if such events had occurred
on such date or at the beginning of such periods, as the case may be) to the
Transaction, each material acquisition by the Borrower or any of its
Subsidiaries consummated March 31, 2007 and prior to the Closing Date and
all other material transactions that would be required to be given pro forma
effect by Regulation S-X promulgated under the Exchange Act (including other
adjustments consistent with the definition of Pro Forma Adjustment or as
otherwise agreed between the Borrower and the Arrangers).  The Pro Forma Financial Statements have been
prepared in good faith, based on assumptions believed by the Borrower to be
reasonable as of the date of delivery thereof, and present fairly in all
material respects on a pro forma basis and in accordance with GAAP the
estimated financial position of the Borrower and its Subsidiaries as at March 31,
2007 and their estimated results of operations for the periods covered thereby,
assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of the periods covered thereby.


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.09       Environmental Compliance.


 


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


 


(b)           Except as specifically
disclosed in Schedule 5.09(b) or except as could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (i) none of the properties currently or formerly owned,
leased or operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous foreign,
state or local list or is adjacent to any such property; (ii) there are no
and never have been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials
are being or have been treated, stored or disposed on any property currently
owned, leased or operated by any Loan Party or any of its Subsidiaries or, to
its knowledge, on any property formerly owned or operated by any Loan Party or
any of its Subsidiaries; (iii) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party or any
of its Subsidiaries; and (iv) Hazardous Materials have not been released,
discharged or disposed of by any Person on any property 


 


88

















 


currently or formerly owned, leased or operated by any Loan Party or
any of its Subsidiaries and Hazardous Materials have not otherwise been
released, discharged or disposed of by any of the Loan Parties and their Subsidiaries
at any other location.


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.11       ERISA Compliance.


 


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


 


(b)           (i) No ERISA Event
has occurred during the five year period prior to the date on which this
representation is made or deemed made with respect to any Pension Plan; (ii) no
Pension Plan has an “accumulated funding deficiency” (as defined in Section 412
of the Code), whether or not waived; (iii) neither any Loan Party nor any
ERISA Affiliate has incurred, 


 


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or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither any Loan Party nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither any Loan Party nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA, except, with respect to each of the
foregoing clauses of this Section 5.11(b), as could not reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.


 


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


 


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


 


SECTION 5.13       Margin Regulations;
Investment Company Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE VI


 


Affirmative Covenants


 


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


 


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


 


(a)           as
soon as available, but in any event ninety (90) days after the end of each
fiscal year of the Borrower beginning with the 2007 fiscal year, a consolidated
balance sheet of the Borrower and its Subsidiaries and the related consolidated
statements of income or operations, stockholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of Deloitte &
Touche LLP or any other independent registered public accounting firm of
nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception or any qualification
or exception as to the scope of such audit;


 


(b)           as
soon as available, but in any event within sixty (60) days after the end of the
first full fiscal quarter ending immediately after the Closing Date and
thereafter within forty-five (45) days after the end of each of the first three
(3) fiscal quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related (i) consolidated statements of income or
operations for such fiscal quarter and for the portion of the fiscal year then
ended and (ii) consolidated statements of cash flows for the portion of
the fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting in
all material respects the financial condition, results of operations,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; and


 


(c)           simultaneously
with the delivery of each set of consolidated financial statements referred to
in Sections 6.01(a) and 6.01(b) above, the related consolidating
financial statements reflecting the adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) from such consolidated financial
statements.


 


Notwithstanding
the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01
may be satisfied with respect to financial information of the Borrower and its Subsidiaries
by furnishing (A) the applicable financial statements of the Borrower or (B) the
Borrower’s Form 10-K or 


 


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10-Q, as
applicable, filed with the SEC; provided that,
with respect to each of clauses (A) and (B), to the extent such
information is in lieu of information required to be provided under Section 6.01(a),
such materials are accompanied by a report and opinion of Deloitte &
Touche LLP or any other independent registered public accounting firm of
nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception or any qualification
or exception as to the scope of such audit.


 


SECTION 6.02       Certificates; Other
Information.  Deliver to the
Administrative Agent for prompt further distribution to each Lender:


 


(a)           no
later than five (5) days after the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent
registered public accounting firm certifying such financial statements and
stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default resulting from a violation of Section 7.11
or, if any such Event of Default shall exist, stating the nature and status of
such event.


 


(b)           no
later than five (5) days after the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower and, if such
Compliance Certificate demonstrates an Event of Default resulting from a
violation of Section 7.11, any of the Permitted Holders may deliver,
together with such Compliance Certificate, notice of their intent to cure (a “Notice
of Intent to Cure”) such Event of Default pursuant to Section 8.05; provided that the delivery of a Notice of Intent to Cure
shall in no way affect or alter the occurrence, existence or continuation of
any such Event of Default or the rights, benefits, powers and remedies of the
Administrative Agent and the Lenders under any Loan Document;


 


(c)           promptly
after the same are publicly available, copies of all annual, regular, periodic
and special reports and registration statements which the Borrower files with
the SEC or with any Governmental Authority that may be substituted therefor
(other than amendments to any registration statement (to the extent such
registration statement, in the form it became effective, is delivered),
exhibits to any registration statement and, if applicable, any registration
statement on Form S-8) and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;


 


(d)           promptly
after the furnishing thereof, copies of any material requests or material
notices received by any Loan Party (other than in the ordinary course of
business) or material statements or material reports furnished to any holder of
debt securities of any Loan Party or of any of its Subsidiaries pursuant to the
terms of any Junior Financing Documentation in a principal amount greater than
the Threshold Amount and not otherwise required to be furnished to the Lenders
pursuant to any other clause of this Section 6.02;


 


(e)           together
with the delivery of the financial statements pursuant to Section 6.01(a) and
each Compliance Certificate pursuant to Section 6.02(b), (i) a report
setting 


 


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forth the information
required by Section 3.03(c) of the Security Agreement or confirming
that there has been no change in such information since the Closing Date or the
date of the last such report), (ii) a description of each event, condition
or circumstance during the last fiscal quarter covered by such Compliance
Certificate requiring a mandatory prepayment under Section 2.05(b) and
(iii) a list of each Subsidiary that identifies each Subsidiary as a
Restricted or an Unrestricted Subsidiary as of the date of delivery of such
Compliance Certificate; and


 


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


 


Documents
required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to
the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that:  (i) upon
written request by the Administrative Agent, the Borrower shall deliver paper
copies of such documents to the Administrative Agent for further distribution
to each Lender until a written request to cease delivering paper copies is
given by the Administrative Agent and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the
Administrative Agent.  Each Lender shall
be solely responsible for timely accessing posted documents or requesting
delivery of paper copies of such documents from the Administrative Agent and
maintaining its copies of such documents.


 


SECTION 6.03       Notices.  Promptly after obtaining knowledge thereof,
notify the Administrative Agent:


 


(a)           of
the occurrence of any Default; and


 


(b)           of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including arising out of or resulting from (i) breach
or non-performance of, or any default or event of default under, a Contractual
Obligation of any Loan Party or any Subsidiary, (ii) any dispute,
litigation, investigation, proceeding or suspension between any Loan Party or
any Subsidiary and any Governmental Authority, (iii) the commencement of,
or any material development in, any litigation or proceeding affecting any Loan
Party or any Subsidiary, including pursuant to any applicable Environmental Laws
or in respect of IP Rights or the assertion or occurrence of any noncompliance
by any Loan Party or as any of its Subsidiaries with, or liability under, any
Environmental Law or Environmental Permit, or (iv) the occurrence of any
ERISA Event.


 


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Each notice
pursuant to this Section shall be accompanied by a written statement of a
Responsible Officer of the Borrower (x) that such notice is being delivered
pursuant to Section 6.03(a) or (b) (as applicable) and (y)
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto.


 


SECTION 6.04       Payment of Obligations.  Pay, discharge or otherwise satisfy as the
same shall become due and payable, all its obligations and liabilities in
respect of taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, except, in each
case, to the extent the failure to pay or discharge the same could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 6.05       Preservation of
Existence, Etc.  (a)  Preserve,
renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 7.04
or 7.05 and (b) take all reasonable action to maintain all rights,
privileges (including its good standing), permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except (i) to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04
or 7.05.


 


SECTION 6.06       Maintenance of
Properties.  Except if the failure to
do so could not reasonably be expected to have a Material Adverse Effect, (a) maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order, repair and condition,
ordinary wear and tear excepted and casualty or condemnation excepted, and (b) make
all necessary renewals, replacements, modifications, improvements, upgrades,
extensions and additions thereof or thereto in accordance with prudent industry
practice.


 


SECTION 6.07       Maintenance of Insurance.  Maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts
(after giving effect to any self-insurance reasonable and customary for
similarly situated Persons engaged in the same or similar businesses as the Borrower
and the Restricted Subsidiaries) as are customarily carried under similar
circumstances by such other Persons.


 


SECTION 6.08       Compliance with Laws.  Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable
to it or to its business or property, except if the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 6.09       Books and Records.  Maintain proper books of record and account,
in which entries that are full, true and correct in all material respects and
are in conformity with GAAP consistently applied shall be made of all material
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.


 


SECTION 6.10       Inspection Rights.  Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, 


 


95

















 


to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the reasonable expense of the Borrower and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided that,
excluding any such visits and inspections during the continuation of an Event
of Default, only the Administrative Agent on behalf of the Lenders may exercise
rights of the Administrative Agent and the Lenders under this Section 6.10
and the Administrative Agent shall not exercise such rights more often than two
(2) times during any calendar year absent the existence of an Event of
Default and only one (1) such time shall be at the Borrower’s expense; provided  further that
when an Event of Default exists, the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and upon reasonable advance notice. 
The Administrative Agent and the Lenders shall give the Borrower the
opportunity to participate in any discussions with the Borrower’s independent
public accountants.


 


SECTION 6.11       Covenant to Guarantee
Obligations and Give Security.  At
the Borrower’s expense, take all action necessary or reasonably requested by
the Administrative Agent to ensure that the Collateral and Guarantee
Requirement continues to be satisfied, including:


 


(a)           upon
the formation or acquisition of any new direct or indirect wholly owned Domestic
Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded
Subsidiary) by any Loan Party or the designation in accordance with Section 6.14
of any existing direct or indirect wholly owned Domestic Subsidiary as a Restricted
Subsidiary:


 


(i)            within thirty (30) days after such formation,
acquisition or designation or such longer period as the Administrative Agent
may agree in its discretion:


 


(A)          cause each such
Restricted Subsidiary that is required to become a Guarantor under the
Collateral and Guarantee Requirement to furnish to the Administrative Agent a
description of the real properties owned by such Restricted Subsidiary that have
a book value in excess of $5,000,000 in detail reasonably satisfactory to the
Administrative Agent;


 


(B)           cause (x) each such
Restricted Subsidiary that is required to become a Guarantor pursuant to the
Collateral and Guarantee Requirement to duly execute and deliver to the
Administrative Agent or the Collateral Agent (as appropriate) Mortgages,
Security Agreement Supplements, Intellectual Property Security Agreements and
other security agreements and documents (including, with respect to Mortgages,
the documents listed in Section 6.13(b)), as reasonably requested by and
in form and substance reasonably satisfactory to the Administrative Agent
(consistent with the Mortgages, Security Agreement, Intellectual Property
Security Agreements and other Collateral Documents in effect on the Closing
Date), in each case granting Liens required by the Collateral and Guarantee Requirement



 


96

















 


and (y) each direct or indirect parent of
each such Restricted Subsidiary that is required to be a Guarantor pursuant to
the Collateral and Guarantee Requirement to duly execute and deliver to the
Administrative Agent such Security Agreement Supplements and other security
agreements as reasonably requested by and in form and substance reasonably
satisfactory to the Administrative Agent (consistent with the Security
Agreements in effect on the Closing Date), in each case granting Liens required
by the Collateral and Guarantee Requirement;


 


(C)           (x) cause each such
Restricted Subsidiary that is required to become a Guarantor pursuant to the
Collateral and Guarantee Requirement to deliver any and all certificates
representing Equity Interests (to the extent certificated) that are required to
be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by
undated stock powers or other appropriate instruments of transfer executed in
blank and instruments evidencing the intercompany Indebtedness held by such
Restricted Subsidiary and required to be pledged pursuant to the Collateral Documents,
indorsed in blank to the Collateral Agent and (y) cause each direct or indirect
parent of such Restricted Subsidiary that is required to be a Guarantor
pursuant to the Collateral and Guarantee Requirement to deliver any and all
certificates representing the outstanding Equity Interests (to the extent
certificated) of such Restricted Subsidiary that are required to be pledged
pursuant to the Collateral and Guarantee Requirement, accompanied by undated
stock powers or other appropriate instruments of transfer executed in blank and
instruments evidencing the intercompany Indebtedness issued by such Restricted
Subsidiary and required to be pledged in accordance with the Collateral Documents,
indorsed in blank to the Collateral Agent;


 


(D)          take and cause such
Restricted Subsidiary and each direct or indirect parent of such Restricted
Subsidiary that is required to become a guarantor pursuant to the Guarantee and
Collateral Requirement to take whatever action (including the recording of
Mortgages, the filing of Uniform Commercial Code financing statements and
delivery of stock and membership interest certificates) may be necessary in the
reasonable opinion of the Administrative Agent to vest in the Administrative
Agent (or in any representative of the Administrative Agent designated by it)
valid Liens required by the Collateral and Guarantee Requirement, enforceable
against all third parties in accordance with their terms, except as such
enforceability may be limited by Debtor Relief Laws and by general principles
of equity,


 


(ii)           within thirty (30) days after the request therefor
by the Administrative Agent, deliver to the Administrative Agent a signed copy
of an opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to such 


 


97

















 


matters set forth
in this Section 6.11(a) as the Administrative Agent may reasonably
request, and


 


(iii)          as promptly as practicable after the request
therefor by the Administrative Agent, deliver to the Administrative Agent with
respect to each parcel of real property that is owned by such Restricted
Subsidiary and has a book value in excess of $5,000,000, any existing title
reports, surveys or environmental assessment reports.


 


(b)           (i) 
[reserved];


 


(ii)           the Borrower shall
obtain the security interests and Guarantees set forth on Schedule 1.01B
on or prior to the dates corresponding to such security interests and Guarantees
set forth on Schedule 1.01B; and


 


(iii)          after the Closing Date, promptly
after (x) the acquisition of any material personal property by any Loan Party
or (y) the acquisition of any owned real property by any Loan Party with a book
value in excess of $5,000,000, and if such personal property or owned real
property shall not already be subject to a perfected Lien pursuant to the
Collateral and Guarantee Requirement, the Borrower shall give notice thereof to
the Administrative Agent and promptly thereafter shall cause such assets to be
subjected to a Lien to the extent required by the Collateral and Guarantee
Requirement and will take, or cause the relevant Loan Party to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect or record such Lien, including, as applicable, the
actions referred to in Section 6.13(b) with respect to real property.


 


SECTION 6.12       Compliance with
Environmental Laws.  Except, in each
case, to the extent that the failure to do so could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, comply,
and take all reasonable actions to cause all lessees and other Persons
operating or occupying its properties to comply with all applicable Environmental
Laws and Environmental Permits; obtain and renew all Environmental Permits
necessary for its operations and properties; and, in each case to the extent
required by Environmental Laws, conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws.


 


SECTION 6.13       Further Assurances and
Post-Closing Conditions.


 


(a)           Promptly upon
reasonable request by the Administrative Agent (i) correct any material
defect or error that may be discovered in the execution, acknowledgment, filing
or recordation of any Collateral Document or other document or instrument
relating to any Collateral, and (ii) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent may reasonably request from time to time in order to carry
out more effectively the purposes of the Collateral Documents.


 


(b)           In the case of any real
property referred to in Section 6.11(b), provide the Administrative Agent
with Mortgages with respect to such owned real property within thirty (30) 


 


98

















 


days of the acquisition of, or, if requested by the Administrative
Agent, entry into, or renewal of, a ground lease in respect of, such real
property in each case together with:


 


(i)            evidence that
counterparts of the Mortgages have been duly executed, acknowledged and
delivered and are in form suitable for filing or recording in all filing or
recording offices that the Administrative Agent may deem reasonably necessary or
desirable in order to create a valid and subsisting perfected Lien on the
property and/or rights described therein in favor of the Administrative Agent
or the Collateral Agent (as appropriate) for the benefit of the Secured Parties
and that all filing and recording taxes and fees have been paid or otherwise
provided for in a manner reasonably satisfactory to the Administrative Agent;


 


(ii)           fully paid American
Land Title Association Lender’s Extended Coverage title insurance policies or
the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements
and in amount, reasonably acceptable to the Administrative Agent (not to exceed
the value of the real properties covered thereby), issued, coinsured and
reinsured by title insurers reasonably acceptable to the Administrative Agent,
insuring the Mortgages to be valid subsisting Liens on the property described
therein, free and clear of all defects and encumbrances, subject to Liens
permitted by Section 7.01, and providing for such other affirmative
insurance (including endorsements for future advances under the Loan Documents)
and such coinsurance and direct access reinsurance as the Administrative Agent
may reasonably request;


 


(iii)          opinions of local
counsel for the Loan Parties in states in which the real properties are
located, with respect to the enforceability and perfection of the Mortgages and
any related fixture filings in form and substance reasonably satisfactory to
the Administrative Agent;


 


(iv)          evidence that each such
space lease contains a provision reasonably acceptable to the Administrative
Agent permitting a collateral assignment with respect to such provisions; provided that the Administrative Agent shall be permitted to
waive this requirement if it is reasonably satisfied that the Borrower has used
its commercially reasonable efforts to comply with this requirement; and


 


(v)           such other evidence
that all other actions that the Administrative Agent may reasonably deem
necessary or desirable in order to create valid and subsisting Liens on the
property described in the Mortgages has been taken.


 


SECTION 6.14       Designation of
Subsidiaries.  The board of directors
of the Borrower may at any time designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (i) immediately
before and after such designation, no Default shall have occurred and be
continuing, (ii) immediately after giving effect to such designation, the Borrower
and the Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis
(it being understood that if such designation is to be made effective prior to
the date that the December 31, 2007 Test Period has become effective, the
levels set forth in Section 7.11 for the December 31, 2007 Test
Period shall be deemed to apply), with the covenants set forth in Section 7.11
(and, as a condition precedent to the effectiveness of 


 


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any such designation, the Borrower shall deliver to the Administrative
Agent a certificate setting forth in reasonable detail the calculations
demonstrating such compliance) and (iii) no Subsidiary may be designated
as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the
purpose of any Junior Financing, as applicable. 
The designation of any Subsidiary as an Unrestricted Subsidiary shall
constitute an Investment by the Borrower therein at the date of designation in
an amount equal to the net book value of the Borrower’s investment
therein.  The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the
incurrence at the time of designation of any Indebtedness or Liens of such
Subsidiary existing at such time.


 


SECTION 6.15       Flood Insurance.  With respect to each Mortgaged Property,
obtain flood insurance in such total amount as the Administrative Agent or the
Required Lenders may from time to time reasonably require, if at any time the
area in which any improvements located on any Mortgaged Property is designated
a “flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), and otherwise comply
with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as amended from time to time.


 


ARTICLE VII


 


Negative Covenants


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, the Borrower shall not, nor
shall it permit any of its Restricted Subsidiaries to, directly or indirectly:


 


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


 


(a)           Liens
pursuant to any Loan Document;


 


(b)           Liens
existing on the date hereof and listed on Schedule 7.01(b) and
any modifications, replacements, renewals or extensions thereof; provided that (i) the Lien does not
extend to any additional property other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien or
financed by Indebtedness permitted under Section 7.03, and (B) proceeds
and products thereof, and (ii) the renewal, extension or refinancing of
the obligations secured or benefited by such Liens is permitted by Section 7.03;


 


(c)           Liens
for taxes, assessments or governmental charges which are not overdue for a
period of more than thirty (30) days or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;


 


(d)           statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
construction contractors or other like Liens arising in the ordinary 


 


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course of
business which secure amounts not overdue for a period of more than thirty (30)
days or if more than thirty (30) days overdue, are unfiled and no other action
has been taken to enforce such Lien or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;


 


(e)           (i) pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation and (ii) pledges
and deposits in the ordinary course of business securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the Borrower or
any Restricted Subsidiary;


 


(f)            deposits
to secure the performance of bids, trade contracts, governmental contracts and
leases (other than Indebtedness for borrowed money), statutory obligations,
surety, stay, customs and appeal bonds, performance bonds and other obligations
of a like nature (including those to secure health, safety and environmental
obligations) incurred in the ordinary course of business;


 


(g)           easements,
rights-of-way, restrictions, encroachments, protrusions and other similar
encumbrances and minor title defects affecting real property which, in the
aggregate, do not in any case materially interfere with the ordinary conduct of
the business of the Borrower or any material Subsidiary;


 


(h)           Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h);


 


(i)            Liens
securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens attach
concurrently with or within two hundred and seventy (270) days after the
acquisition, repair, replacement, construction or improvement (as applicable)
of the property subject to such Liens, (ii) such Liens do not at any time
encumber any property except for accessions to such property other than the
property financed by such Indebtedness and the proceeds and the products
thereof and (iii) with respect to Capitalized Leases, such Liens do not at
any time extend to or cover any assets (except for accessions to such assets)
other than the assets subject to such Capitalized Leases; provided that individual financings of
equipment provided by one lender may be cross collateralized to other
financings of equipment provided by such lender;


 


(j)            leases,
licenses, subleases or sublicenses granted to others in the ordinary course of
business which do not (i) interfere in any material respect with the
business of the Borrower or any material Subsidiary or (ii) secure any
Indebtedness;


 


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


 


(l)            Liens
(i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on the items in the course of collection, and (ii) in
favor of a banking 


 


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institution
arising as a matter of law encumbering deposits (including the right of set
off) and which are within the general parameters customary in the banking
industry;


 


(m)          Liens
(i) on cash advances in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Section 7.02(i) or (n) to be
applied against the purchase price for such Investment, (ii) attaching to
commodity trading accounts or other commodities brokerage accounts incurred in
the ordinary course of business and (iii) consisting of an agreement to
Dispose of any property in a Disposition permitted under Section 7.05, in
each case, solely to the extent such Investment or Disposition, as the case may
be, would have been permitted on the date of the creation of such Lien;


 


(n)           Liens
on property (i) of any Foreign Subsidiary that is not a Loan Party and (ii) that
does not constitute Collateral, which Liens secure Indebtedness of the applicable
Foreign Subsidiary permitted under Section 7.03;


 


(o)           Liens
in favor of the Borrower or a Restricted Subsidiary securing Indebtedness
permitted under Section 7.03(d);


 


(p)           Liens
existing on property at the time of its acquisition or existing on the property
of any Person at the time such Person becomes a Restricted Subsidiary (other
than by designation as a Restricted Subsidiary pursuant to Section 6.14),
in each case after the date hereof (other than Liens on the Equity Interests of
any Person that becomes a Restricted Subsidiary) and the replacement, extension
or renewal of any Lien permitted by this clause (p) upon or in the same
property previously subject thereto in connection with the replacement,
extension or renewal (without increase in the amount or any change in any
direct or contingent obligor) of the amount or value secured thereby; provided that (i) such Lien was not
created in contemplation of such acquisition or such Person becoming a
Restricted Subsidiary, (ii) such Lien does not extend to or cover any
other assets or property (other than the proceeds or products thereof and other
than after-acquired property subjected to a Lien securing Indebtedness and
other obligations incurred prior to such time and which Indebtedness and other
obligations are permitted hereunder that require, pursuant to their terms at
such time, a pledge of after-acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and (iii) the
Indebtedness secured thereby is permitted under Section 7.03(e), (g) or
(k);


 


(q)           any
interest or title of a lessor under leases entered into by the Borrower or any
of the Restricted Subsidiaries in the ordinary course of business;


 


(r)            [reserved];


 


(s)           Liens
encumbering out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business permitted by this
Agreement;


 


(t)            Liens
deemed to exist in connection with Investments in repurchase agreements under Section 7.02
and reasonable customary initial deposits and margin deposits 


 


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and similar
Liens attaching to commodity trading accounts or other brokerage accounts
incurred in the ordinary course of business and not for speculative purposes;


 


(u)           Liens
that are contractual rights of set-off (i) relating to the establishment
of depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of the Borrower
and the Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Borrower or any Restricted
Subsidiary in the ordinary course of business;


 


(v)           Liens
solely on any cash earnest money deposits made by the Borrower or any of the
Restricted Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;


 


(w)          (i) Liens
placed upon the Equity Interests of any Restricted Subsidiary acquired pursuant
to a Permitted Acquisition to secure Indebtedness incurred pursuant to Section 7.03(g) in
connection with such Permitted Acquisition and (ii) Liens placed upon the
assets of such Restricted Subsidiary and any of its Subsidiaries to secure a
Guarantee by such Restricted Subsidiary and its Subsidiaries of any such
Indebtedness incurred pursuant to Section 7.03(g);


 


(x)            ground
leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located;


 


(y)           Liens
arising from precautionary Uniform Commercial Code financing statement filings;


 


(z)            Liens
on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto.


 


(aa)         other
Liens securing Indebtedness outstanding in an aggregate principal amount not to
exceed $20,000,000.


 


Notwithstanding
the foregoing, no Liens on any IP Collateral shall be permitted at any time,
other than pursuant to Section 7.01(a), (b), (c), (h), (j), (m), (o), (p),
(r), (u)(iii) or (w), and no Liens (other than those referred to in Section 7.01(a))
shall be permitted on the Collateral consisting of the Equity Interests of the
Borrower or the Foreign Holdco.


 


Notwithstanding
the foregoing, no Liens shall be permitted to exist directly or indirectly on
any Mortgaged Property other than pursuant to clauses (a), (b), (c), (d), (g), (h),
(j), (p), (q) and (x) (to the extent, with reference to clause (j) of this Section 7.01,
the Borrower and the applicable Loan Party shall use commercially reasonable
efforts to cause such leases, licenses, subleases or sublicenses to be
subordinate to the lien of any Mortgage).


 


SECTION 7.02       Investments.  Make or hold any Investments, except:


 


 


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(a)           Investments
by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents
when such Investment was made;


 


(b)           loans
or advances to officers, directors and employees of the Borrower and the
Restricted Subsidiaries (i)  for reasonable and customary business-related
travel, entertainment, relocation and analogous ordinary business purposes, (ii) in
connection with such Person’s purchase of Equity Interests of the Borrower (provided that the amount of such loans and
advances shall be contributed to the Borrower in cash as common equity) and (iii) for
purposes not described in the foregoing clauses (i) and (ii), in an
aggregate principal amount outstanding not to exceed $2,500,000;


 


(c)           Investments
(i) by the Borrower or any Restricted Subsidiary in any Loan Party
(excluding any new Restricted Subsidiary which becomes a Loan Party and
excluding any Foreign Subsidiary), (ii) by any Restricted Subsidiary that
is not a Loan Party in any other such Restricted Subsidiary that is also not a
Loan Party and (iii) by the Borrower or any Restricted Subsidiary (A) in
any Subsidiary that is not a Loan Party; provided
that the aggregate amount of such Investments in Persons that are not Loan
Parties (together with, but without duplication of, the aggregate consideration
paid in respect of Permitted Acquisitions of Persons that do not become Loan
Parties pursuant to Section 7.02(i)(B), but with giving effect to any
Investment permitted by Section 7.02(q)) shall not exceed $75,000,000 (net
of any return representing a return of capital in respect of any such
Investment) or (B) in any Foreign Subsidiary that is a Loan Party,
consisting of the contribution of Equity Interests of any other Foreign
Subsidiary held directly by the Borrower or such Restricted Subsidiary in
exchange for Indebtedness, Equity Interests or a combination thereof of the
Foreign Subsidiary to which such contribution is made, (C) in any Foreign
Subsidiary, constituting an exchange of Equity Interests of such Foreign
Subsidiary for Indebtedness of such Foreign Subsidiary or (D) constituting
Guarantees of Indebtedness or other monetary obligations of Foreign
Subsidiaries owing to any Loan Party, to the extent such Guarantees are
permitted under Section 7.03 and (iv) by any Foreign Subsidiary that
is a Loan Party in any other Foreign Subsidiary that is a Loan Party (other
than any new Restricted Subsidiary that becomes a Loan Party);


 


(d)           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to
suppliers in the ordinary course of business;


 


(e)           Investments
consisting of Liens, Indebtedness, fundamental changes and Dispositions
permitted under Sections 7.01, 7.03, 7.04 and 7.05, respectively;


 


(f)            Investments
(i) existing or contemplated on the date hereof and set forth on Schedule 7.02(f) and
any modification, replacement, renewal, reinvestment or extension thereof and (ii) existing
on the date hereof by the Borrower or any Restricted Subsidiary in the Borrower
or any other Restricted Subsidiary and any modification, renewal or extension
thereof; provided that the amount
of any Investment permitted pursuant to this Section 7.02(f) is not materially
increased from the amount of such Investment on the 


 


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Closing Date
via the transfer of assets from any of the Borrower or any Subsidiary thereof to
such Investment;


 


(g)           Investments
in Swap Contracts permitted under Section 7.03;


 


(h)           promissory
notes and other noncash consideration received in connection with Dispositions
permitted by Section 7.05;


 


(i)            the
purchase or other acquisition of property and assets or businesses of any
Person or of assets constituting a business unit, a line of business or
division of such Person, or Equity Interests in a Person that, upon the
consummation thereof, will be a wholly owned Subsidiary of the Borrower
(including as a result of a merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this Section 7.02(i) (each,
a “Permitted Acquisition”):


 


(A)          subject to clause (B) below, a majority
of all property, assets and businesses acquired in such purchase or other
acquisition shall constitute Collateral and each applicable Loan Party and any
such newly created or acquired Subsidiary (and, to the extent required under
the Collateral and Guarantee Requirement, the Subsidiaries of such created or
acquired Subsidiary) shall be Guarantors and shall have complied with the
requirements of Section 6.11, within the times specified therein (for the
avoidance of doubt, this clause (A) shall not override any provisions of
the Collateral and Guarantee Requirement);


 


(B)           the aggregate amount of consideration paid
in respect of acquisitions of Persons that do not become Loan Parties (together
with the aggregate amount of all Investments in Foreign Subsidiaries that are
not Loan Parties pursuant to Section 7.02(c)(iii)(A), but with giving
effect to any Investments permitted under Section 7.02(q)) shall not
exceed $75,000,000 (net of any return representing a return of capital in
respect of any such Investment);


 


(C)           the acquired property, assets, business or
Person is in the same line of business as the Borrower and the Subsidiaries,
taken as a whole;


 


(D)          the board of directors (or similar governing
body) of the Person to be so purchased or acquired shall not have indicated
publicly its opposition to the consummation of such purchase or acquisition
(which opposition has not been publicly withdrawn);


 


(E)           (1) immediately before and immediately
after giving Pro Forma Effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing, (2) immediately after
giving effect to such purchase or other acquisition the Total Leverage Ratio
for the Borrower shall be not greater than 5.0:1 and (3) the Borrower and
the Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants
set forth in Section 7.11 for the Test Period in effect at the time such
purchase or other acquisition is to occur (it being understood that if such
purchase or other acquisition is to occur prior to the date that the December 31,
2007 Test Period is effective, the levels set forth in Section 7.11 for 


 


105

















 


the December 31, 2007 Test Period shall be deemed to apply), and,
in the case of acquisitions the aggregate consideration which is in excess of $10,000,000,
which shall be evidenced by a certificate from the Chief Financial Officer of
the Borrower demonstrating such compliance calculation in reasonable detail;
and


 


(F)           the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lenders, no later than five (5) Business
Days after the date on which any such purchase or other acquisition is
consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (i) have been satisfied or will be
satisfied on or prior to the consummation of such purchase or other
acquisition;


 


(j)            the
Transaction;


 


(k)           Investments
in the ordinary course of business consisting of Article 3 endorsements
for collection or deposit and Article 4 customary trade arrangements with
customers consistent with past practices;


 


(l)            Investments
(including debt obligations and Equity Interests) received in connection with
the bankruptcy or reorganization of suppliers and customers or in settlement of
delinquent obligations of, or other disputes with, customers and suppliers
arising in the ordinary course of business or upon the foreclosure with respect
to any secured Investment or other transfer of title with respect to any
secured Investment;


 


(m)          [reserved];


 


(n)           so
long as immediately after giving effect to any such Investment, no Default has
occurred and is continuing and the Borrower and the Restricted Subsidiaries will
be in Pro Forma Compliance with the covenants set forth in Section 7.11
for the Test Period in effect at the time such Investment is being made (it
being understood that if such Investment is to be made prior to the date that
the December 31, 2007 Test Period is effective, the levels set forth in Section 7.11
for the December 31, 2007 Test Period shall be deemed to apply), other
Investments that do not exceed $75,000,000, in the aggregate, net of any return
representing return of capital in respect of any such investment and valued at
the time of the making thereof; provided
that, such amount shall be increased by (i) the Net Cash Proceeds of
Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant
to Section 8.05) that are Not Otherwise Applied and (ii) if, as of
the last day of the immediately preceding Test Period (after giving Pro Forma
Effect to such Investments) the Total Leverage Ratio is 3.25:1 or less, the
amount of Cumulative Excess Cash Flow that is Not Otherwise Applied.  For the purpose of this Agreement, “Cumulative Excess Cash Flow” means the sum
of Excess Cash Flow (but not less than zero in any period) for the fiscal year
ending on December 31, 2008 and Excess Cash Flow for each succeeding and
completed fiscal year (it being understood that no Excess Cash Flow generated
during any period shall be deemed to be Cumulative Excess Cash Flow until the
financial statements for such period are delivered pursuant to Section 6.01(a));


 


106














 


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


 


(p)           Investments
to the extent that payment for such Investments is made solely with Qualified
Equity Interests of the Borrower;


 


(q)           Investments
held by a Restricted Subsidiary (acquired after the Closing Date or of a
corporation merged into the Borrower or merged or consolidated with a
Restricted Subsidiary in accordance with Section 7.04 after the Closing
Date), to the extent that such Investments were not made in contemplation of or
in connection with such acquisition, merger or consolidation and were in
existence on the date of such acquisition, merger or consolidation;


 


(r)            Guarantees
by the Borrower or any Restricted Subsidiary of leases (other than Capitalized
Leases) or of other obligations that do not constitute Indebtedness, in each
case entered into in the ordinary course of business;


 


provided that (x) no Investment in an
Unrestricted Subsidiary that would otherwise be permitted under this Section 7.02
shall be permitted hereunder to the extent that any portion of such Investment
is used to make any prepayments, redemptions, purchases, defeasances and other
payments in respect of Junior Financings and (y) notwithstanding anything to
the contrary contained in this Section 7.02, to the extent (i) the
Borrower shall remain a Subsidiary of Parent and (ii) required by any
Travelport Debt Financing Agreement, nothing in this Section 7.02 shall
limit the ability of the Borrower and its Restricted Subsidiaries to (x) pay
any indebtedness owed to Travelport Limited (f/k/a TDS Investor (Bermuda) Ltd.)
or any of its “Restricted Subsidiaries” (as such term is defined in any
Travelport Debt Financing Agreement (so long as such definition conveys the
same basic meaning as such definition in the Travelport Debt Financing
Agreements as in effect on the date hereof)) or (y) make loans or advances to
Travelport Limited (f/k/a TDS Investor (Bermuda) Ltd.) or any of its “Restricted
Subsidiaries” (as such term is defined in any Travelport Debt Financing
Agreement (so long as such definition conveys the same basic meaning as such
definition in the Travelport Debt Financing Agreements as in effect on the date
hereof)).


 


SECTION 7.03       Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness,
except:


 


(a)           Indebtedness
of the Borrower and any of its Subsidiaries under the Loan Documents;


 


(b)           Indebtedness
(i) outstanding on the date hereof and listed on Schedule 7.03(b),
provided that the letters of
credit and surety bonds listed thereon must be backstopped by a Letter of
Credit issued hereunder and, other than in respect of any letter of credit or
any surety bond listed thereon or any drawing upon any such letter of credit or
surety bond, any Permitted Refinancing thereof; and (ii) intercompany
Indebtedness outstanding on the date hereof;


 


(c)           Guarantees
by the Borrower and the Restricted Subsidiaries in respect of Indebtedness of the
Borrower or any Restricted Subsidiary otherwise permitted hereunder 


 


107

















 


(except that a
Restricted Subsidiary that is not a Loan Party may not, by virtue of this Section 7.03(c),
Guarantee Indebtedness that such Restricted Subsidiary could not otherwise
incur under this Section 7.03); provided
that (A) no Guarantee by any Restricted Subsidiary of any Note or Junior
Financing shall be permitted unless such Restricted Subsidiary shall have also
provided a Guarantee of the Obligations substantially on the terms set forth in
the Guaranty and (B) if the Indebtedness being Guaranteed is subordinated
to the Obligations, such Guarantee shall be subordinated to the Guarantee of
the Obligations on terms at least as favorable to the Lenders as those
contained in the subordination of such Indebtedness;


 


(d)           Indebtedness
of the Borrower or any Restricted Subsidiary owing to the Borrower or any other
Restricted Subsidiary to the extent constituting an Investment permitted by Section 7.02;
provided that, all such
Indebtedness of any Loan Party owed to any Person that is not a Loan Party
shall be subject to the subordination terms set forth in Section 5.03 of
the Security Agreement;


 


(e)           (i) Attributable
Indebtedness and other Indebtedness (including Capitalized Leases) financing
the acquisition, construction, repair, replacement or improvement of fixed or
capital assets, other than software; provided
that such Indebtedness is incurred concurrently with or within two hundred and
seventy (270) days after the applicable acquisition, construction, repair,
replacement or improvement, (ii) Attributable Indebtedness arising out of
sale-leaseback transactions permitted by Section 7.05(f) and (iii) any
Permitted Refinancing of any Indebtedness set forth in the immediately
preceding clauses (i) and (ii); provided
that the aggregate principal amount of Indebtedness outstanding at any one time
pursuant to this Section 7.03(e) shall not exceed 5.0% of Total
Assets at such time;


 


(f)            Indebtedness
in respect of Swap Contracts designed to hedge against interest rates, foreign
exchange rates or commodities pricing risks incurred in the ordinary course of
business and not for speculative purposes;


 


(g)           Indebtedness
of the Borrower, Foreign Subsidiaries or Guarantors (i) assumed in
connection with any Permitted Acquisition or (ii) incurred to finance a
Permitted Acquisition, in each case, that is secured only by the assets or
business acquired in the applicable Permitted Acquisition (including any
acquired Equity Interests) and so long as both immediately prior and after
giving effect thereto, (A) no Default shall exist or result therefrom, (B) the
Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with
the covenants set forth in Section 7.11 for the Test Period in effect at
the time of the assumption or incurrence of such Indebtedness (it being
understood that if such assumption or incurrence is to occur prior to the date
that the December 31, 2007 Test Period has become effective, the levels
set forth in Section 7.11 for the December 31, 2007 Test Period shall
be deemed to apply), and (C) the aggregate principal amount of such
Indebtedness and all Indebtedness resulting from any Permitted Refinancing
thereof at any time outstanding pursuant to this paragraph (g) does not
exceed $50,000,000; provided that the
aggregate amount of Indebtedness outstanding at Persons that are not Loan
Parties pursuant to this clause (g) and clause (n) below shall not exceed $50,000,000
at any one time;


 


108

















 


(h)           (i) Indebtedness
of the Borrower and the Restricted Subsidiaries (A) assumed in connection
with any Permitted Acquisition; provided
that such Indebtedness is not incurred in contemplation of such Permitted
Acquisition, or (B) incurred to finance a Permitted Acquisition and (ii) any
Permitted Refinancing of the foregoing; provided,
in each case that such Indebtedness and all Indebtedness resulting from any
Permitted Refinancing thereof (v) is unsecured, (w) both immediately prior
and after giving effect thereto, (1) no Default shall exist or result
therefrom, (2) the Total Leverage Ratio for the Borrower would be not greater
than 5.0:1 and (3) the Borrower and the Restricted Subsidiaries will be in
Pro Forma Compliance with the covenants set forth in Section 7.11 for the
Test Period in effect at the time of the assumption or incurrence of such
Indebtedness (it being understood that if such assumption or incurrence is to
occur prior to the date that the December 31, 2007 Test Period has become
effective, the levels set forth in Section 7.11 for the December 31,
2007 Test Period shall be deemed to apply), (x) matures after, and does not
require any scheduled amortization or other scheduled payments of principal
prior to, the Maturity Date of the Term Loans (it being understood that such
Indebtedness may have mandatory prepayment, repurchase or redemptions
provisions satisfying the requirement of clause (y) hereof), (y) has terms and
conditions (other than interest rate, redemption premiums and subordination
terms), taken as a whole, that are not materially less favorable to the
Borrower as the terms and conditions of high yield debt securities typical for
the Sponsor; provided that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such Indebtedness, together
with a reasonably detailed description of the material terms and conditions of
such Indebtedness or drafts of the documentation relating thereto, stating that
the Borrower has determined in good faith that such terms and conditions
satisfy the foregoing requirement shall be conclusive evidence that such terms
and conditions satisfy the foregoing requirement unless the Administrative
Agent notifies the Borrower within such five Business Day period that it
disagrees with such determination (including a reasonable description of the
basis upon which it disagrees), and (z) with respect to such Indebtedness
described in the immediately preceding clause (B) or any Permitted
Refinancing thereof, is incurred by the Borrower or a Guarantor; provided further that notwithstanding anything contained in
the Loan Documents to the contrary, (a) the maximum principal amount of
all Indebtedness described in clause (A) of this paragraph (together with
any Permitted Refinancing of Indebtedness in respect thereof) with respect to
which a Restricted Subsidiary that is not a Guarantor may become liable shall
be $50,000,000 and (b) the only obligors with respect to any Indebtedness
incurred pursuant to clause (A) of this paragraph or any Permitted
Refinancing of Indebtedness in respect thereof shall be of those Persons who
were obligors of such Indebtedness immediately prior to such Permitted
Acquisition.


 


(i)            Indebtedness
representing deferred compensation to employees of the Borrower and the
Restricted Subsidiaries incurred in the ordinary course of business;


 


(j)            Indebtedness
to current or former officers, directors and employees, their respective
estates, spouses or former spouses to finance the purchase or redemption of
Equity Interests of the Borrower;


 


109

















 


(k)           Indebtedness
incurred by the Borrower or the Restricted Subsidiaries in a Permitted
Acquisition, any other Investment expressly permitted hereunder or any
Disposition to the extent constituting indemnification obligations or
obligations in respect of purchase price or other similar adjustments;


 


(l)            Indebtedness
consisting of obligations of the Borrower or the Restricted Subsidiaries under
deferred compensation or other similar arrangements incurred by such Person in
connection with the Transaction and Permitted Acquisitions or any other
Investment expressly permitted hereunder;


 


(m)          Cash
Management Obligations and other Indebtedness in respect of netting services,
overdraft protections and similar arrangements in each case in connection with
deposit accounts;


 


(n)           Indebtedness
in an aggregate principal amount not to exceed $100,000,000 at any time
outstanding; provided that a
maximum of $50,000,000 in aggregate principal amount of such Indebtedness (less
the aggregate principal amount of Indebtedness of Foreign Subsidiaries that are
not Guarantors outstanding at any time under Section 7.03(g)) may be
incurred by Foreign Subsidiaries that are not Guarantors; and provided  further that both
immediately prior and after giving effect thereto the Total Leverage Ratio of
the Borrower would be not greater than 5.0:1;


 


(o)           Indebtedness
consisting of (a) the financing of insurance premiums or (b) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;


 


(p)           Indebtedness
incurred by the Borrower or any of the Restricted Subsidiaries in respect of
letters of credit, bank guarantees, bankers’ acceptances or similar instruments
issued or created in the ordinary course of business, including in respect of
workers compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers
compensation claims; provided
that any reimbursement obligations in respect thereof are reimbursed within 30
days following the incurrence thereof;


 


(q)           obligations
in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees and similar obligations provided by the Borrower or any
of the Restricted Subsidiaries or obligations in respect of letters of credit,
bank guarantees or similar instruments related thereto, in each case in the
ordinary course of business or consistent with past practice;


 


(r)            [reserved];


 


(s)           Indebtedness
supported by a Letter of Credit, in a principal amount not to exceed the face
amount of such Letter of Credit;


 


(t)            [reserved];
and


 


110

















 


(u)           all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
clauses (a) through (v) above.


 


SECTION 7.04       Fundamental Changes.  Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that:


 


(a)           any
Restricted Subsidiary may merge with (i) the Borrower (including a merger,
the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be
the continuing or surviving Person and (y) such merger does not result in the
Borrower ceasing to be incorporated under the Laws of the United States, any
state thereof or the District of Columbia, or (ii) any one or more other
Restricted Subsidiaries; provided
that when any Restricted Subsidiary that is a Loan Party is merging with
another Restricted Subsidiary, a Loan Party shall be the continuing or
surviving Person;


 


(b)           (i) any
Subsidiary that is not a Loan Party may merge or consolidate with or into any
other Subsidiary that is not a Loan Party and (ii) any Subsidiary may
liquidate or dissolve or change its legal form if the Borrower determines in
good faith that such action is in the best interests of the Borrower and its
Subsidiaries and if not materially disadvantageous to the Lenders;


 


(c)           any
Restricted Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Restricted Subsidiary; provided
that if the transferor in such a transaction is a Guarantor or a Borrower, then
(i) the transferee must either be the Borrower or a Guarantor or (ii) to
the extent constituting an Investment, such Investment must be a permitted
Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan
Party in accordance with Sections 7.02 and 7.03, respectively;


 


(d)           so
long as no Default exists or would result therefrom, the Borrower may merge
with any other Person; provided
that (i) the Borrower shall be the continuing or surviving corporation or (ii) if
the Person formed by or surviving any such merger or consolidation is not the
Borrower (any such Person, the “Successor
Borrower”), (A) the Successor Borrower shall be an entity
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory thereof, (B) the Successor
Borrower shall expressly assume all the obligations of the Borrower under this
Agreement and the other Loan Documents to which the Borrower is a party
pursuant to a supplement hereto or thereto in form reasonably satisfactory to
the Administrative Agent, (C) each Guarantor, unless it is the other party
to such merger or consolidation, shall have by a supplement to the Guaranty confirmed
that its Guarantee shall apply to the Successor Borrower’s obligations under
this Agreement, (D) each Guarantor, unless it is the other party to such
merger or consolidation, shall have by a supplement to the Security Agreement
confirmed that its obligations thereunder shall apply to the Successor Borrower’s
obligations under this Agreement, (E) each mortgagor of a Mortgaged
Property, 


 


111

















 


unless it is
the other party to such merger or consolidation, shall have by an amendment to
or restatement of the applicable Mortgage confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, and (F) the Borrower shall have delivered to the Administrative
Agent an officer’s certificate and an opinion of counsel, each stating that
such merger or consolidation and such supplement to this Agreement or any
Collateral Document comply with this Agreement; provided, further,
that if the foregoing are satisfied, the Successor Borrower will succeed to,
and be substituted for, the Borrower under this Agreement;


 


(e)           so
long as no Default exists or would result therefrom, any Restricted Subsidiary
may merge with any other Person in order to effect an Investment permitted
pursuant to Section 7.02; provided
that the continuing or surviving Person shall be a Restricted Subsidiary, which
together with each of its Restricted Subsidiaries, shall have complied with the
requirements of Section 6.11;


 


(f)            so
long as no Default exists or would result therefrom and no material assets have
been transferred to such Subsidiaries from the Borrower or any Subsidiary
thereof from the Closing Date to the date of such dissolution or liquidation,
the Subsidiaries listed on Schedule 7.04(f) may be dissolved
or liquidated; and


 


(g)           so
long as no Default exists or would result therefrom, a merger, dissolution,
liquidation, consolidation or Disposition, the purpose of which is to effect a
Disposition permitted pursuant to Section 7.05.


 


Notwithstanding anything to the contrary contained in this Section 7.04,
to the extent (i) the Borrower shall remain a Subsidiary of Parent and (ii) required
by any Travelport Debt Financing Agreement, nothing in this Section 7.04
shall limit the ability of the Borrower and its Restricted Subsidiaries to
sell, lease or transfer any of its properties or assets to Travelport Limited
(f/k/a TDS Investor (Bermuda) Ltd.) or any of its “Restricted Subsidiaries” (as
such term is defined in any Travelport Debt Financing Agreement).


 


SECTION 7.05       Dispositions.  Make any Disposition or enter into any
agreement to make any Disposition, except:


 


(a)           Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business and Dispositions of property no longer used or
useful in the conduct of the business of the Borrower and the Restricted
Subsidiaries;


 


(b)           Dispositions
of inventory and immaterial assets in the ordinary course of business;


 


(c)           Dispositions
of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property that is promptly purchased
or (ii) the proceeds of such Disposition are promptly applied to the
purchase price of such replacement property (which replacement property is
actually promptly purchased);


 


112

















 


(d)           Dispositions
of property to the Borrower or to a Restricted Subsidiary; provided that if the transferor of such
property is a Guarantor or a Borrower (i) the transferee thereof must
either be a Borrower or a Guarantor or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section 7.02;


 


(e)           Dispositions
permitted by Sections 7.04 and Liens permitted by Section 7.01;


 


(f)            Dispositions
of property (other than IP Collateral) pursuant to sale-leaseback transactions;
provided that (i) with
respect to such property owned by the Borrower and its Restricted Subsidiaries
on the Closing Date, the fair market value of all property so Disposed of after
the Closing Date (taken together with the aggregate book value of all property
Disposed of pursuant to Section 7.05(j)) shall not exceed five percent
(5.0%) of Total Assets per year and (ii) with respect to such property
acquired by the Borrower or any Restricted Subsidiary after the Closing Date,
the applicable sale-leaseback transaction occurs within two hundred and seventy
(270) days after the acquisition or construction (as applicable) of such
property;


 


(g)           Dispositions
in the ordinary course of business of Cash Equivalents;


 


(h)           leases,
subleases, licenses or sublicenses (including the provision of software under
an open source license), in each case in the ordinary course of business and
which do not materially interfere with the business of the Borrower and the
Restricted Subsidiaries;


 


(i)            transfers
of property subject to Casualty Events upon receipt of the Net Cash Proceeds of
such Casualty Event;


 


(j)            Dispositions
of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such
Disposition (other than any such Disposition made pursuant to a legally binding
commitment entered into at a time when no Default exists), no Default shall
exist or would result from such Disposition, (ii) the aggregate book value
of all property Disposed of in reliance on this clause (j) (taken together with
the aggregate fair market value of all property Disposed of pursuant to Section 7.05(f))
shall not exceed five percent (5.0%) of Total Assets per year and (iii) with
respect to any Disposition pursuant to this clause (j) for a purchase price in
excess of $5,000,000, the Borrower or a Restricted Subsidiary shall receive not
less than 75% of such consideration in the form of cash or Cash Equivalents (in
each case, free and clear of all Liens at the time received, other than
nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(s)
and clauses (i) and (ii) of Section 7.01(u)); provided, however,
that for the purposes of this clause (iii), (A) any liabilities (as shown
on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet
provided hereunder or in the footnotes thereto) of the Borrower or such
Restricted Subsidiary, other than liabilities that are by their terms
subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the
Borrower and all of the Restricted Subsidiaries shall have been validly
released by all applicable creditors in writing, (B) any securities
received by the Borrower or such Restricted Subsidiary 


 


113

















 


from such
transferee that are converted by the Borrower or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days following the
closing of the applicable Disposition and (C) any Designated Non-Cash
Consideration received by the Borrower or such Restricted Subsidiary in respect
of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (C) that
is at that time outstanding, not in excess of 2.5% of Total Assets at the time
of the receipt of such Designated Non-Cash Consideration, with the fair market
value of each item of Designated Non-Cash Consideration being measured at the time
received and without giving effect to subsequent changes in value, shall be
deemed to be cash;


 


(k)           any
Disposition of any Subsidiary listed on Schedule 7.05(k), so long
as no material assets are transferred to any such Subsidiary from the Borrower
or any Subsidiary thereof from the Closing Date to the date of such Disposition;


 


(l)            Dispositions
of Investments in joint ventures to the extent required by, or made pursuant to
customary buy/sell arrangements between, the joint venture parties set forth in
joint venture arrangements and similar binding arrangements; and


 


(m)          any
Disposition of any Subsidiary listed on Schedule 7.05(m) to any wholly
owned Subsidiary that is not a Loan Party so long as no material assets are
transferred to any such Subsidiary from the Borrower or any Subsidiary thereof
from the Closing Date to the date of such Disposition;


 


provided that any Disposition of any property
pursuant to this Section 7.05 (except pursuant to Sections 7.05(e) and
(m) and except for Dispositions from a Loan
Party to another Loan Party), shall be for no less than the fair market value
of such property at the time of such Disposition.  To the extent any Collateral is Disposed of
as expressly permitted by this Section 7.05 to any Person other than the
Borrower or any Restricted Subsidiary, such Collateral shall be sold free and
clear of the Liens created by the Loan Documents, and, if requested by the
Administrative Agent, upon the certification by the Borrower that such
Disposition is permitted by this Agreement, the Administrative Agent or the
Collateral Agent, as applicable, shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.


 


Notwithstanding anything to the contrary contained in this Section 7.05,
to the extent (i) the Borrower shall remain a Subsidiary of Parent and (ii) required
by any Travelport Debt Financing Agreement, nothing in this Section 7.05
shall limit the ability of the Borrower and its Restricted Subsidiaries to
sell, lease or transfer any of its properties or assets to Travelport Limited
(f/k/a TDS Investor (Bermuda) Ltd.) or any of its “Restricted Subsidiaries” (as
such term is defined in any Travelport Debt Financing Agreement).


 


SECTION 7.06       [Reserved].


 


SECTION 7.07       Change in Nature of
Business.  Engage in any material
line of business substantially different from those lines of business conducted
by the Borrower and the Restricted Subsidiaries on the date hereof or any
business reasonably related or ancillary thereto.


 


114

















 


SECTION 7.08       Transactions with
Affiliates.  Enter into any
transaction of any kind with any Affiliate of the Borrower whether or not in
the ordinary course of business, other than (a) transactions among Loan
Parties or any Restricted Subsidiary or any entity that becomes a Restricted
Subsidiary as a result of such transaction, (b) on terms substantially as
favorable to the Borrower or such Restricted Subsidiary as would be obtainable
by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length
transaction with a Person other than an Affiliate, (c) the payment of fees
and expenses related to the Transaction, (d) the issuance of Equity
Interests to the management of the Borrower or any of its Subsidiaries in connection
with the Transaction, (e) the payment of management and monitoring fees to
the Sponsor in an aggregate amount in any fiscal year not to exceed the amount
permitted to be paid pursuant to the Sponsor Management Agreement as in effect
on the date hereof and any Sponsor Termination Fees not to exceed the amount
set forth in the Sponsor Management Agreement as in effect on the date hereof
and related indemnities and reasonable expenses, (f) equity issuances,
repurchases, retirements or other acquisitions or retirements of Equity
Interests by the Borrower, (g) loans and other transactions by the
Borrower and the Restricted Subsidiaries to the extent permitted under this Article 7,
(h) employment and severance arrangements between the Borrower and the Restricted
Subsidiaries and their respective officers and employees in the ordinary course
of business, (i) payments by the Borrower and the Restricted Subsidiaries
pursuant to the tax sharing agreements among the Borrower and the Restricted
Subsidiaries on customary terms to the extent attributable to the ownership or
operation of the Borrower and the Restricted Subsidiaries, (j) the payment of
customary fees and reasonable out of pocket costs to, and indemnities provided
on behalf of, directors, officers and employees of the Borrower and the
Restricted Subsidiaries in the ordinary course of business to the extent
attributable to the ownership or operation of the Borrower and the Restricted
Subsidiaries, (k) transactions pursuant to permitted agreements in existence on
the Closing Date and set forth on Schedule 7.08 or any amendment
thereto to the extent such an amendment is not adverse to the Lenders in any
material respect, (l) dividends, redemptions and repurchases, (m) customary
payments by the Borrower and any Restricted Subsidiaries to the Sponsor made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities (including in connection with
acquisitions or divestitures), which payments are approved by the majority of
the members of the board of directors or a majority of the disinterested
members of the board of directors of the Borrower in good faith and (n)
transactions between or among Parent and its Subsidiaries and the Borrower and
the Restricted Subsidiaries pursuant to (x) the agreements set forth in the Exhibit Index
of that certain Registration Statement filed on Form S-1 by the Borrower
with the SEC on June 11, 2007 and (y) that certain reimbursement agreement
relating to letters of credit dated the date hereof between the Borrower and
Parent, as such agreements may be amended from time to time to be not
materially less favorable to the Borrower than at the Closing Date; provided that notwithstanding anything to the contrary
contained in this Section 7.08, to the extent (i) the Borrower shall
remain a Subsidiary of Parent and (ii) required by any Travelport Debt
Financing Agreement, nothing in this Section 7.08 shall limit the ability
of the Borrower and its Restricted Subsidiaries to (x) pay any indebtedness
owed to Travelport Limited (f/k/a TDS Investor (Bermuda) Ltd.) or any of its “Restricted
Subsidiaries” (as such term is defined in any Travelport Debt Financing
Agreement (so long as such definition conveys the same basic meaning as such
definition in the Travelport Debt Financing Agreements as in effect on the date
hereof)), (y) make loans or advances to Travelport Limited (f/k/a TDS Investor
(Bermuda) Ltd.) or any of its “Restricted Subsidiaries” (as such term is
defined in any Travelport Debt Financing Agreement) 


 


115

















 


or (z) sell, lease or transfer any of its properties or assets to
Travelport Limited (f/k/a TDS Investor (Bermuda) Ltd.) or any of its “Restricted
Subsidiaries” (as such term is defined in any Travelport Debt Financing
Agreement (so long as such definition conveys the same basic meaning as such
definition in the Travelport Debt Financing Agreements as in effect on the date
hereof)).


 


SECTION 7.09       Burdensome Agreements.  Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that limits
the ability of (a) any Restricted Subsidiary that is not a Guarantor to
make Restricted Payments to the Borrower or any Guarantor or (b) the
Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on
property of such Person for the benefit of the Lenders with respect to the
Facilities and the Obligations or under the Loan Documents; provided that the foregoing clauses (a) and
(b) shall not apply to Contractual Obligations which (i) (x) exist on
the date hereof and (to the extent not otherwise permitted by this Section 7.09)
are listed on Schedule 7.09 hereto and (y) to the extent
Contractual Obligations permitted by clause (x) are set forth in an agreement
evidencing Indebtedness, are set forth in any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as
such renewal, extension or refinancing does not expand the scope of such
Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the
time such Restricted Subsidiary first becomes a Restricted Subsidiary, so long
as such Contractual Obligations were not entered into solely in contemplation
of such Person becoming a Restricted Subsidiary; provided  further
that this clause (ii) shall not apply to Contractual Obligations that are
binding on a Person that becomes a Restricted Subsidiary pursuant to Section 6.14,
(iii) represent Indebtedness of a Restricted Subsidiary which is not a
Loan Party which is permitted by Section 7.03, (iv) arise in
connection with any Disposition permitted by Section 7.05, (v) are
customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures permitted under Section 7.02 and applicable
solely to such joint venture entered into in the ordinary course of business, (vi) are
negative pledges and restrictions on Liens in favor of any holder of Indebtedness
permitted under Section 7.03 but solely to the extent any negative pledge
relates to the property financed by or the subject of such Indebtedness (and
excluding in any event any Indebtedness constituting any Junior Financing), (vii) are
customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions relate to the assets
subject thereto, (viii) comprise restrictions imposed by any agreement
relating to secured Indebtedness permitted pursuant to Section 7.03(e) or
7.03(g) to the extent that such restrictions apply only to the property or
assets securing such Indebtedness or, in the case of Indebtedness incurred
pursuant to Section 7.03(g) only, to the Restricted Subsidiaries
incurring or guaranteeing such Indebtedness, (ix) are customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Borrower or any Restricted Subsidiary, (x) are customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business, and (xi) are restrictions on cash or other deposits imposed
by customers under contracts entered into in the ordinary course of business.


 


SECTION 7.10       Use of Proceeds.  Use the proceeds of any Credit Extension,
whether directly or indirectly, in a manner inconsistent with the uses set
forth in the preliminary statements to this Agreement.


 


116

















 


SECTION 7.11       Financial Covenants.


 


(a)           Maximum
Total Leverage Ratio.  Permit
the Total Leverage Ratio as of any date set forth below to be greater than the
ratio set forth below opposite such date:


 


	
  Fiscal Year

  	
   

  	
  March 31

  	
   

  	
  June 30

  	
   

  	
  September 30

  	
   

  	
  December 31

  	
   

  
	
  2007

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  6.0:1

  	
   

  
	
  2008

  	
   

  	
  5.75:1

  	
   

  	
  5.5:1

  	
   

  	
  5.25:1

  	
   

  	
  5.0:1

  	
   

  
	
  2009

  	
   

  	
  4.5:1

  	
   

  	
  4.5:1

  	
   

  	
  4.25:1

  	
   

  	
  4.25:1

  	
   

  
	
  2010

  	
   

  	
  3.5:1

  	
   

  	
  3.5:1

  	
   

  	
  3.5:1

  	
   

  	
  3.5:1

  	
   

  
	
  Thereafter

  	
   

  	
  3.0:1

  	
   

  	
  3.0:1

  	
   

  	
  3.0:1

  	
   

  	
  3.0:1

  	
   

  



 


(b)           Fixed Charge Coverage
Ratio.  Permit the Fixed
Charge Coverage Ratio for any Test Period to be less than the ratio set forth
below opposite the last day of such Test Period:


 


	
  Fiscal Year

  	
   

  	
  March 31

  	
   

  	
  June 30

  	
   

  	
  September 30

  	
   

  	
  December 31

  	
   

  
	
  2007

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  0.9:1

  	
   

  
	
  2008

  	
   

  	
  0.9:1

  	
   

  	
  0.9:1

  	
   

  	
  1.0:1

  	
   

  	
  1.0:1

  	
   

  
	
  Thereafter

  	
   

  	
  1.0:1

  	
   

  	
  1.0:1

  	
   

  	
  1.0:1

  	
   

  	
  1.0:1

  	
   

  



 


SECTION 7.12       Accounting Changes.  Make any change in fiscal year; provided, however,
that the Borrower may, upon written notice to the Administrative Agent, change
its fiscal year to any other fiscal year reasonably acceptable to the
Administrative Agent, in which case, the Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary to reflect such change in fiscal year.


 


SECTION 7.13       Prepayments, Etc. of
Indebtedness.


 


(a)           Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner (it being understood that payments of regularly scheduled
interest shall be permitted) any subordinated Indebtedness incurred under Section 7.03(h) or
any other Indebtedness that is required to be subordinated to the Obligations
pursuant to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in
violation of any subordination terms of any Junior Financing Documentation,
except (i) the refinancing thereof with the Net Cash Proceeds of any
Indebtedness (to the extent such Indebtedness constitutes a Permitted
Refinancing and, if applicable, is permitted pursuant to Section 7.03(h)),
to the extent not required to prepay any Loans or Facility pursuant to Section 2.05(b),
or of any Indebtedness of the Borrower, (ii) the conversion of any Junior
Financing to Equity Interests (other than Disqualified Equity Interests) of the
Borrower, (iii) the prepayment of Indebtedness of the Borrower or any
Restricted Subsidiary to the Borrower or any Restricted Subsidiary to the
extent permitted by the Collateral Documents and (iv) prepayments,
redemptions, purchases, defeasances and other payments in respect of Junior
Financings prior to their scheduled maturity in an aggregate amount, together
with the aggregate amount of (1) Restricted Payments made by the Borrower
and its Subsidiaries and (2) loans and advances to the Borrower made
pursuant to Section 7.02(m), not to exceed the sum of (i) $25,000,000,
(ii) the amount of the Net Cash Proceeds 


 


117

















 


of Permitted Equity Issuances (other than Permitted Equity Issuances
made pursuant to Section 8.05) made within eighteen (18) months prior
thereto that are Not Otherwise Applied and (iii) if, as of the last day of
the immediately preceding Test Period (after giving Pro Forma Effect to such
prepayments, redemptions, purchases, defeasances and other payments) the Total
Leverage Ratio is 3.25:1 or less, the amount of Cumulative Excess Cash Flow
that is Not Otherwise Applied; and


 


(b)           amend, modify or change
in any manner materially adverse to the interests of the Lenders any term or
condition of any Junior Financing Documentation without the consent of the
Arrangers;


 


provided
that notwithstanding anything to the contrary contained in this Section 7.13,
to the extent (i) the Borrower shall remain a Subsidiary of Parent and (ii) required
by any Travelport Debt Financing Agreement, nothing in this Section 7.13
shall limit the ability of the Borrower and its Restricted Subsidiaries to pay
any indebtedness owed to Travelport Limited (f/k/a TDS Investor (Bermuda) Ltd.)
or any of its “Restricted Subsidiaries” (as such term is defined in any
Travelport Debt Financing Agreement (so long as such definition conveys the
same basic meaning as such definition in the Travelport Debt Financing
Agreements as in effect on the date hereof)).


 


SECTION 7.14       Equity Interests of the
Borrower and Restricted Subsidiaries. 
Permit any Domestic Subsidiary that is a Restricted Subsidiary to become
a non-wholly owned Subsidiary, except to the extent such Restricted Subsidiary
continues to be a Guarantor or in connection with a sale of all of such
Restricted Subsidiary or the designation of an Unrestricted Subsidiary pursuant
to Section 6.14.


 


ARTICLE VIII


 


Events of Default and Remedies


 


SECTION 8.01       Events of Default.  Any of the following events referred to in
any of clauses (a) through (m) inclusive of this Section 8.01 shall
constitute an “Event of Default”:


 


(a)           Non-Payment.  The Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal of
any Loan, or (ii) within five (5) Business Days after the same
becomes due, any interest on any Loan or any other amount payable hereunder or
with respect to any other Loan Document; or


 


(b)           Specific Covenants.  The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Sections 6.03(a) or 6.05(a) (solely
with respect to the Borrower) or Article 7 provided that any Event of Default
under Section 7.11 is subject to cure as contemplated by Section 8.05;
or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days after notice thereof by the Administrative
Agent to the Borrower; or


 


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


 


(e)           Cross-Default.  Any Loan Party or any Restricted Subsidiary (A) fails
to make any payment beyond the applicable grace period with respect thereto, if
any (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness (other than Indebtedness
hereunder) having an aggregate principal amount of not less than the Threshold
Amount, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness, or any other event occurs (other
than, with respect to Indebtedness consisting of Secured Hedge Agreements,
termination events or equivalent events pursuant to the terms of such Secured
Hedge Agreements), the effect of which default or other event is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity; provided
that this clause (e)(B) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness, if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness; or


 


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


 


(g)           Inability to Pay Debts; Attachment.  (i) Any Loan Party or any Restricted
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts in excess of the Threshold Amount as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of the Loan Parties,
taken as a whole, and is not released, vacated or fully bonded within sixty
(60) days after its issue or levy; or


 


(h)           Judgments. 
There is entered against any Loan Party or any Restricted Subsidiary a final
judgment or order for the payment of money in an aggregate amount 


 


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exceeding the
Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer has been notified of such judgment or order
and has not denied or failed to acknowledge coverage thereof) and such judgment
or order shall not have been satisfied, vacated, discharged or stayed or bonded
pending an appeal for a period of sixty (60) consecutive days; or


 


(i)            ERISA. 
(i)  An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of any Loan Party under Title IV of ERISA in an aggregate amount
which could reasonably be expected to result in a Material Adverse Effect, (ii) any
Loan Party or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount which could reasonably be expected to result in a
Material Adverse Effect, or (iii) a termination, withdrawal or
noncompliance with applicable law or plan terms or termination, withdrawal or
other event similar to an ERISA Event occurs with respect to a Foreign Plan
that could reasonably be expected to result in a Material Adverse Effect; or


 


(j)            Invalidity of Loan Documents.  Any material provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder (including as a result of a
transaction permitted under Section 7.04 or 7.05) or as a result of acts
or omissions by the Administrative Agent or any Lender or the satisfaction in
full of all the Obligations, ceases to be in full force and effect; or any Loan
Party contests in writing the validity or enforceability of any provision of
any Loan Document; or any Loan Party denies in writing that it has any or
further liability or obligation under any Loan Document (other than as a result
of repayment in full of the Obligations and termination of the Aggregate
Commitments), or purports in writing to revoke or rescind any Loan Document; or


 


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


 


(l)            Collateral Documents.  (i) Any Collateral Document after
delivery thereof pursuant to Section 4.01 or 6.11 shall for any reason
(other than pursuant to the terms thereof including as a result of a
transaction permitted under Section 7.04 or 7.05) cease to create a valid
and perfected lien, with the priority required by the Collateral Documents, (or
other security purported to be created on the applicable Collateral) on and
security interest in any material portion of the Collateral purported to be
covered thereby, subject to Liens permitted under Section 7.01, except to
the extent that any such loss of perfection or priority results from the
failure of the Administrative Agent or the Collateral Agent to maintain
possession of certificates actually delivered to it representing securities
pledged under the Collateral Documents or to file Uniform Commercial Code
continuation statements and except as to Collateral consisting of real property
to the extent that such losses are covered by a lender’s title insurance policy
and such insurer has not denied or failed to acknowledge coverage, or (ii) any
of the Equity Interests of the Borrower ceasing to be pledged pursuant to the
Security Agreement free of Liens other than Liens created by the Security
Agreement or any nonconsensual Liens arising solely by operation of Law; or


 


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(m)          Junior Financing Documentation.  (i) Any of the Obligations of the Loan
Parties under the Loan Documents for any reason shall cease to be “Senior
Indebtedness” (or any comparable term) or “Senior Secured Financing” (or any
comparable term) under, and as defined in any Junior Financing Documentation or
(ii) the subordination provisions set forth in any Junior Financing
Documentation shall, in whole or in part, cease to be effective or cease to be
legally valid, binding and enforceable against the holders of any Junior
Financing, if applicable.


 


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


 


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


 


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


 


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


 


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable Law;


 


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


 


SECTION 8.03       Exclusion of Immaterial
Subsidiaries.  Solely for the purpose
of determining whether a Default has occurred under clause (f) or (g) of
Section 8.01, any reference in any such clause to any Restricted
Subsidiary or Loan Party shall be deemed not to include any Restricted
Subsidiary affected by any event or circumstances referred to in any such
clause that did not, as of the last day of the most recent completed fiscal
quarter of the Borrower, have assets with a value in excess of 5% of the
consolidated total assets of the Borrower and the Restricted Subsidiaries and
did not, as of the four quarter period ending on the last day of such fiscal
quarter, have revenues exceeding 5% of the total revenues of the Borrower and
the Restricted Subsidiaries (it being agreed that all Restricted Subsidiaries
affected by any event or circumstance referred to in any such clause shall be
considered together, as a single consolidated 


 


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Restricted Subsidiary, for purposes of determining whether the
condition specified above is satisfied).


 


SECTION 8.04       Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts (other
than principal and interest, but including Attorney Costs payable under Section 10.04
and amounts payable under Article 3) payable to the Administrative Agent
in its capacity as such;


 


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders (including Attorney Costs
payable under Section 10.04 and amounts payable under Article 3),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


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


 


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings, the
Swap Termination Value under Secured Hedge Agreements and the Cash Management
Obligations, ratably among the Secured Parties in proportion to the respective
amounts described in this clause Fourth held by them;


 


Fifth, to the Administrative Agent for the
account of the L/C Issuers, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit;


 


Sixth, to the payment of all other Obligations
of the Loan Parties that are due and payable to the Administrative Agent and
the other Secured Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date; and


 


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


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. 
If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above and, if
no Obligations remain outstanding, to the Borrower.


 


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SECTION 8.05       Borrower’s Right to Cure.


 


(a)           Notwithstanding
anything to the contrary contained in Section 8.01, in the event of any
Event of Default resulting from a violation of the covenants set forth in Section 7.11
and until the expiration of the tenth (10th) day after the date on which
financial statements are required to be delivered with respect to the
applicable fiscal quarter hereunder, the Borrower may engage in a Permitted
Equity Issuance to any of the Permitted Holders and apply the amount of the Net
Cash Proceeds thereof to increase Consolidated EBITDA with respect to such
applicable quarter; provided that
such Net Cash Proceeds (i) are actually received by the Borrower through
capital contribution of such Net Cash Proceeds by the Borrower to the Borrower
no later than ten (10) days after the date on which financial statements
are required to be delivered with respect to such fiscal quarter hereunder, (ii) are
Not Otherwise Applied and (iii) do not exceed the aggregate amount
necessary to cure such Event of Default from a violation of the covenants set
forth in Section 7.11 for any applicable period.  The parties hereby acknowledge that this Section 8.05(a) may
not be relied on for purposes of calculating any financial ratios other than as
applicable to Section 7.11 and shall not result in any adjustment to any
amounts other than the amount of the Consolidated EBITDA referred to in the
immediately preceding sentence.


 


In each period
of four fiscal quarters, there shall be at least one fiscal quarter in which no
cure set forth in Section 8.05(a) is made.


 


ARTICLE IX


 


Administrative Agent and Other Agents


 


SECTION 9.01       Appointment and
Authorization of Agents.


 


(a)           Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall have no duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” herein and in the other Loan Documents with reference to any
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


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(b)           Each L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and each such L/C Issuer shall have all
of the benefits and immunities (i) provided to the Agents in this Article 9
with respect to any acts taken or omissions suffered by such L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term “Agent” as used in this Article 9
and in the definition of “Agent-Related Person” included such L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to such L/C Issuer.


 


(c)           The Administrative
Agent shall also act as the “collateral agent” under the Loan Documents, and
each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), L/C Issuer (if applicable) and a potential Hedge Bank) hereby
irrevocably appoints and authorizes the Administrative Agent to act as the
agent of (and to hold any security interest created by the Collateral Documents
for and on behalf of or on trust for) such Lender for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent,
as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.02 for purposes
of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for exercising any rights and
remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article 9 (including Section 9.07,
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect
thereto.


 


SECTION 9.02       Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights and
remedies thereunder) by or through agents, employees or attorneys-in-fact
including for the purpose of any Borrowing or payment in Alternative Currencies,
such sub-agents as shall be deemed necessary by the Administrative Agent and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or sub-agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct (as determined in the final judgment of a court of competent jurisdiction).


 


SECTION 9.03       Liability of Agents.  No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct,
as determined by the final judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of 


 


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this Agreement or any other Loan Document, or the perfection or
priority of any Lien or security interest created or purported to be created
under the Collateral Documents, or for any failure of any Loan Party or any
other party to any Loan Document to perform its obligations hereunder or
thereunder.  No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party or any Affiliate thereof.


 


SECTION 9.04       Reliance by Agents.


 


(a)           Each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, electronic
mail message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by such
Agent.  Each Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  Each Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of
determining compliance with the conditions specified in Section 4.01, 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.


 


SECTION 9.05       Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a “notice of default.” 
The Administrative Agent will notify the Lenders of its receipt of any
such notice.  The Administrative Agent
shall take such action with respect to any Event of Default as may be directed
by the Required Lenders in accordance with Article 8; provided that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable
or in the best interest of the Lenders.


 


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SECTION 9.06       Credit Decision;
Disclosure of Information by Agents. 
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by any Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. 
Each Lender represents to each Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower and the other Loan Parties
hereunder.  Each Lender also represents that
it will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and the other Loan Parties.  Except for notices, reports and other documents
expressly required to be furnished to the Lenders by any Agent herein, such
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.


 


SECTION 9.07       Indemnification of
Agents.  Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such Agent-Related
Person’s own gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction; provided
that no action taken in accordance with the directions of the Required Lenders
(or such other number or percentage of the Lenders as shall be required by the
Loan Documents) shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 9.07.  In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Liabilities, this Section 9.07
applies whether any such investigation, litigation or proceeding is brought by
any Lender or any other Person.  Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not reimbursed
for such expenses by or on behalf of the Borrower, provided
that such reimbursement by the Lenders shall not affect the Borrower’s continuing
reimbursement obligations with respect 


 


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thereto.  The undertaking in this
Section 9.07 shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.


 


SECTION 9.08       Agents in their
Individual Capacities.  UBS AG,
Stamford Branch and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire Equity Interests in and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though UBS AG, Stamford Branch were not the Administrative
Agent or an L/C Issuer hereunder and without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, UBS AG, Stamford Branch or its Affiliates may
receive information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.  With respect to its Loans, UBS AG, Stamford
Branch shall have the same rights and powers under this Agreement as any other
Lender and may exercise such rights and powers as though it were not the Administrative
Agent or an L/C Issuer, and the terms “Lender” and “Lenders” include UBS AG,
Stamford Branch in its individual capacity.


 


SECTION 9.09       Successor Agents.  The Administrative Agent may resign as the
Administrative Agent upon thirty (30) days’ notice to the Lenders and the
Borrower.  If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
consented to by the Borrower at all times other than during the existence of an
Event of Default under Section 8.01(f) or (g) (which consent of
the Borrower shall not be unreasonably withheld or delayed).  If no successor agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor agent from among the Lenders.  Upon the acceptance of its appointment as
successor agent hereunder, the Person acting as such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term “Administrative Agent,” shall mean such successor
administrative agent and/or supplemental administrative agent, as the case may
be, and the retiring Administrative Agent’s appointment, powers and duties as
the Administrative Agent shall be terminated. 
After the retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article 9 and Sections 10.04
and 10.05 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement.  If no successor agent has accepted appointment
as the Administrative Agent by the date which is thirty (30) days following the
retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.  Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to (a) continue
the perfection of the Liens granted or purported to be granted by the
Collateral Documents or (b) otherwise ensure that the Collateral and
Guarantee Requirement is satisfied, the Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative 


 


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Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations under the Loan Documents.  After the retiring Administrative Agent’s
resignation hereunder as the Administrative Agent, the provisions of this Article 9
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.


 


SECTION 9.10       Administrative Agent May File
Proofs of Claim.  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:


 


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


 


(b)           to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agents and
their respective agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.


 


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


 


SECTION 9.11       Collateral and Guaranty
Matters.  The Lenders irrevocably
agree that:


 


(a)           any
Lien on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Loan Document shall be automatically released (i) upon
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (x) obligations under Secured Hedge Agreements not yet due and
payable, (y) 


 


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Cash
Management Obligations not yet due and payable and (z) contingent
indemnification obligations not yet accrued and payable) and the expiration or
termination of all Letters of Credit, (ii) at the time the property
subject to such Lien is transferred or to be transferred as part of or in
connection with any transfer permitted hereunder or under any other Loan
Document to any Person other than the Borrower or any of its Domestic
Subsidiaries that are Restricted Subsidiaries, (iii) subject to Section 10.01,
if the release of such Lien is approved, authorized or ratified in writing by
the Required Lenders, or (iv) if the property subject to such Lien is
owned by a Guarantor, upon release of such Guarantor from its obligations under
its Guaranty pursuant to clause (c) below;


 


(b)           to
release or subordinate any Lien on any property granted to or held by the
Administrative Agent or the Collateral Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section 7.01(i);
and


 


(c)           any
Guarantor shall be automatically released from its obligations under the
Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a
transaction or designation permitted hereunder; provided that no such release shall occur if such Guarantor
continues to be a guarantor in respect of any Junior Financing.


 


Upon request
by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11.  In each case as specified in this Section 9.11,
the Administrative Agent will (and each Lender irrevocably authorizes the
Administrative Agent to), at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release or subordination of such item of Collateral from the
assignment and security interest granted under the Collateral Documents, or to
evidence the release of such Guarantor from its obligations under the Guaranty,
in each case in accordance with the terms of the Loan Documents and this Section 9.11.


 


SECTION 9.12       Other Agents; Arrangers
and Managers.  None of the Lenders or
other Persons identified on the facing page or signature pages of
this Agreement as a “syndication agent,” “documentation agent”, “joint
bookrunner” or “arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such.  Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action hereunder.


 


SECTION 9.13       Appointment of
Supplemental Administrative Agents.


 


(a)           It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any Law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such
jurisdiction.  It is recognized that in
case of litigation under this Agreement or any of the other Loan Documents, and
in particular in case of the enforcement of any of the Loan Documents, or in
case the Administrative 


 


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Agent deems that by reason of any present or future Law of any
jurisdiction it may not exercise any of the rights, powers or remedies granted
herein or in any of the other Loan Documents or take any other action which may
be desirable or necessary in connection therewith, the Administrative Agent is
hereby authorized to appoint an additional individual or institution selected
by the Administrative Agent in its sole discretion as a separate trustee,
co-trustee, administrative agent, collateral agent, administrative sub-agent or
administrative co-agent (any such additional individual or institution being
referred to herein individually as a “Supplemental
Administrative Agent” and collectively as “Supplemental Administrative Agents”).


 


(b)           In the event that the
Administrative Agent appoints a Supplemental Administrative Agent with respect
to any Collateral, (i) each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan Documents to
be exercised by or vested in or conveyed to the Administrative Agent with
respect to such Collateral shall be exercisable by and vest in such
Supplemental Administrative Agent to the extent, and only to the extent,
necessary to enable such Supplemental Administrative Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Administrative Agent shall run to and be
enforceable by either the Administrative Agent or such Supplemental
Administrative Agent, and (ii) the provisions of this Article 9 and
of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure
to the benefit of such Supplemental Administrative Agent and all references
therein to the Administrative Agent shall be deemed to be references to the
Administrative Agent and/or such Supplemental Administrative Agent, as the
context may require.


 


(c)           Should any instrument
in writing from the Borrower or any other Loan Party be required by any
Supplemental Administrative Agent so appointed by the Administrative Agent for
more fully and certainly vesting in and confirming to him or it such rights,
powers, privileges and duties, the Borrower shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments
promptly upon request by the Administrative Agent.  In case any Supplemental Administrative
Agent, or a successor thereto, shall die, become incapable of acting, resign or
be removed, all the rights, powers, privileges and duties of such Supplemental
Administrative Agent, to the extent permitted by Law, shall vest in and be
exercised by the Administrative Agent until the appointment of a new
Supplemental Administrative Agent.


 


ARTICLE X


 


Miscellaneous


 


SECTION 10.01     Amendments, Etc.  Except as otherwise set forth in this
Agreement, no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower or the applicable Loan Party, as the case may
be, and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided
that, no such amendment, waiver or consent shall:


 


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(a)           extend
or increase the Commitment of any Lender without the written consent of each
Lender directly affected thereby (it being understood that a waiver of any
condition precedent set forth in Section 4.02 or the waiver of any
Default, mandatory prepayment or mandatory reduction of the Commitments shall
not constitute an extension or increase of any Commitment of any Lender);


 


(b)           postpone
any date scheduled for, or reduce the amount of, any payment of principal or
interest under Section 2.07 or 2.08 without the written consent of each
Lender directly affected thereby, it being understood that the waiver of (or
amendment to the terms of) any mandatory prepayment of the Term Loans shall not
constitute a postponement of any date scheduled for the payment of principal or
interest;


 


(c)           reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby, it being
understood that any change to the definition of Total Leverage Ratio or in the
component definitions thereof shall not constitute a reduction in the rate; provided that, only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of the Borrower to pay interest at the Default Rate;


 


(d)           change
any provision of this Section 10.01, the definition of “Required Lenders”
or “Pro Rata Share” or Section 2.06(c), 8.04 or 2.13 without the written
consent of each Lender affected thereby;


 


(e)           other
than in a transaction permitted under Section 7.05, release all or
substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;


 


(f)            other
than in a transaction permitted under Section 7.04 or Section 7.05,
release all or substantially all of the aggregate value of the Guarantees,
without the written consent of each Lender; or


 


(g)           change
the currency in which any Loan is denominated of any Loan without the written
consent of the Lender holding such Loans;


 


and provided  further
that (i) no amendment, waiver or consent shall, unless in writing and
signed by each L/C Issuer in addition to the Lenders required above, affect the
rights or duties of an L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties
of, or any fees or other amounts payable to, the Administrative Agent under
this Agreement or any other Loan Document; (iv) Section 10.07(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or 


 


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other
modification; and (v) the consent of Lenders holding more than 50% of any Class of
Commitments shall be required with respect to any amendment that by its terms
adversely affects the rights of such Class in respect of payments
hereunder in a manner different than such amendment affects other Classes.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender (it
being understood that any Commitments or Loans held or deemed held by any
Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring
any consent of the Lenders).


 


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


 


In addition,
notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Term Loans (“Refinanced Term Loans”)
with a replacement Dollar term loan tranche denominated in Dollars (“Replacement Term Loans”) hereunder; provided
that (a) the aggregate principal amount of such Replacement Term Loans shall
not exceed the aggregate principal amount of such Refinanced Term Loans (b) the
Applicable Rate for such Replacement Term Loans (or similar interest rate
spread applicable to such Replacement Term Loans) shall not be higher than the
Applicable Rate for such Refinanced Term Loans (or similar interest rate spread
applicable to such Refinanced Term Loans) immediately prior to such refinancing,
(c) the Weighted Average Life to Maturity of such Replacement Term Loans shall
not be shorter than the Weighted Average Life to Maturity of such Refinanced
Term Loans at the time of such refinancing (except to the extent of nominal
amortization for periods where amortization has been eliminated as a result of
prepayment of the applicable Term Loans) and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such refinancing.


 


Notwithstanding
anything to the contrary contained in Section 10.01, guarantees,
collateral security documents and related documents executed by Subsidiaries in
connection with this Agreement may be in a form reasonably determined by the
Administrative Agent and may be, together with this Agreement, amended and
waived with the consent of the Administrative Agent at the request of the
Borrower without the need to obtain the consent of any other Lender if such
amendment or waiver is delivered in order (i) to comply with local Law or
advice of local counsel, (ii) to cure ambiguities or defects or (iii) to
cause such guarantee, collateral security document or other document to be
consistent with this Agreement and the other Loan Documents.


 


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SECTION 10.02     Notices and Other
Communications; Facsimile Copies.


 


(a)           General. 
Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Loan Document shall be
in writing (including by facsimile transmission).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 


(i)      if to the Borrower, the
Administrative Agent, an L/C Issuer or the Swing Line Lender, to the address,
facsimile number, electronic mail address or telephone number specified for
such Person on Schedule 10.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties; and


 


(ii)     if to any other Lender, to
the address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the Administrative Agent,
the L/C Issuers and the Swing Line Lender.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if
delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, four (4) Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of Section 10.02(c)), when delivered; provided that notices and other
communications to the Administrative Agent, the L/C Issuers and the Swing Line
Lender pursuant to Article 2 shall not be effective until actually
received by such Person.  In no event
shall a voice mail message be effective as a notice, communication or confirmation
hereunder.


 


(b)           Effectiveness of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or
signed by facsimile.  The effectiveness
of any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually signed originals and shall be binding on all
Loan Parties, the Agents and the Lenders.


 


(c)           Reliance by Agents and Lenders.  The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower in the absence of gross
negligence or willful misconduct.  All
telephonic notices to the 


 


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Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.


 


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


 


SECTION 10.04     Attorney Costs, Expenses
and Taxes.  The Borrower agrees (a) if
the Closing Date occurs, to pay or reimburse the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Arrangers for all reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation, syndication and execution of this Agreement and the other Loan
Documents, and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs of Cahill Gordon &
Reindel LLP and local and foreign
counsel, and (b) to pay or reimburse the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Arrangers and each Lender for all
out-of-pocket costs and expenses incurred in connection with the enforcement of
any rights or remedies under this Agreement or the other Loan Documents
(including all such costs and expenses incurred during any legal proceeding,
including any proceeding under any Debtor Relief Law, and including all
Attorney Costs of counsel to the Administrative Agent).  The foregoing costs and expenses shall
include all reasonable search, filing, recording and title insurance charges
and fees and taxes related thereto, and other (reasonable, in the case of Section 10.04(a))
out-of-pocket expenses incurred by any Agent. 
The agreements in this Section 10.04 shall survive the termination
of the Aggregate Commitments and repayment of all other Obligations.  All amounts due under this Section 10.04
shall be paid within ten (10) Business Days of receipt by the Borrower of
an invoice relating thereto setting forth such expenses in reasonable
detail.  If any Loan Party fails to pay
when due any costs, expenses or other amounts payable by it hereunder or under
any Loan Document, such amount may be paid on behalf of such Loan Party by the
Administrative Agent in its sole discretion.


 


SECTION 10.05     Indemnification by the
Borrower.  Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents, trustees,
investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement,
performance or administration of any Loan Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use 


 


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of the proceeds therefrom (including any refusal by an L/C Issuer to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), or (c) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental
Liability related in any way to the Borrower, any Subsidiary or any other Loan
Party, or (d) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory (including any investigation of, preparation for, or
defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in
whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements resulted from the gross negligence or
willful misconduct of such Indemnitee or of any affiliate, director, officer,
employee, counsel, agent or attorney-in-fact of such Indemnitee.  No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee or any Loan Party have
any liability for any special, punitive, indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the Closing
Date).  In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 10.05
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
stockholders or creditors or an Indemnitee or any other Person, whether or not
any Indemnitee is otherwise a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is
consummated.  All amounts due under this Section 10.05
shall be paid within ten (10) Business Days after demand therefor; provided, however,
that such Indemnitee shall promptly refund such amount to the extent that there
is a final judicial or arbitral determination that such Indemnitee was not
entitled to indemnification or contribution rights with respect to such payment
pursuant to the express terms of this Section 10.05.  The agreements in this Section 10.05
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


SECTION 10.06     Payments Set Aside.  To the extent that any payment by or on
behalf of the Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each
Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any Agent, plus
interest thereon from the date of such demand to 


 


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the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect.


 


SECTION 10.07     Successors and Assigns.


 


(a)           The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee, (ii) by way of participation in accordance with the
provisions of Section 10.07(e), (iii) by way of pledge or assignment
of a security interest subject to the restrictions of Section 10.07(g) or
(iv) to an SPC in accordance with the provisions of Section 10.07(h) (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 10.07(e) and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)           (i)  Subject to
the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (“Assignees”)
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of
this Section 10.07(b), participations in L/C Obligations and in Swing Line
Loans) at the time owing to it) with the prior written consent (such consent
not to be unreasonably withheld or delayed) of:


 


(A)          the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,
if an Event of Default under Section 8.01(a), (f) or (g) has
occurred and is continuing, any Assignee;


 


(B)           the Administrative
Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of all or any portion
of a Term Loan to another Lender, an Affiliate of a Lender or an Approved Fund;


 


(C)           each Principal L/C
Issuer at the time of such assignment, provided
that no consent of the Principal L/C Issuers shall be required for
any assignment of a Term Loan or any assignment to an Agent or an Affiliate of
an Agent; and


 


(D)          in the case of any
assignment of any of the Dollar Revolving Credit Facility, the Swing Line
Lender.


 


(ii)           Assignments shall be
subject to the following additional conditions:


 


(A)          except in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative 


 


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Agent) shall not be less than $5,000,000 (in
the case of the Revolving Credit Facilities) or $1,000,000 (in the case of a
Term Loan) unless each of the Borrower and the Administrative Agent otherwise
consents, provided that (1) no
such consent of the Borrower shall be required if an Event of Default under Section 8.01(a),
(f) or (g) has occurred and is continuing and (2) such amounts
shall be aggregated in respect of each Lender and its Affiliates or Approved
Funds, if any;


 


(B)           the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500; provided that only one such fee shall be payable in the
event of simultaneous assignments from any Lender or its Approved Funds to one or
more other Approved Funds of such Lender; and


 


(C)           the Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.


 


This paragraph
(b) shall not prohibit any Lender from assigning all or a portion of its
rights and obligations among separate Facilities on a non-pro rata basis.


 


(c)           Subject to acceptance
and recording thereof by the Administrative Agent pursuant to Section 10.07(d),
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts
and circumstances occurring prior to the effective date of such assignment).  Upon request, and the surrender by the
assigning Lender of its Note, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this clause (c) shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 10.07(e).


 


(d)           The Administrative
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts (and
related interest amounts) of the Loans, L/C Obligations (specifying the
Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03,
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). 
The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Agents and the Lenders shall treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by the Borrower, any Agent and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


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(e)           Any Lender may at any
time, without the consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any Person (other than a natural person) (each, a
“Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Agents and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this
Agreement or the other Loan Documents; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that directly
affects such Participant.  Subject to Section 10.07(f),
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01 (subject to the requirements of Section 10.15), 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 10.07(c). 
To the extent permitted by applicable Law, each Participant also shall
be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to
be subject to Section 2.13 as though it were a Lender.


 


(f)            A Participant shall
not be entitled to receive any greater payment under Section 3.01, 3.04 or
3.05 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.


 


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


 


(h)           Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part
of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 3.01,
3.04 or 3.05), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval
of any 


 


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amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety
or Guarantee or credit or liquidity enhancement to such SPC.


 


(i)            Notwithstanding
anything to the contrary contained herein, (1) any Lender may in
accordance with applicable Law create a security interest in all or any portion
of the Loans owing to it and the Note, if any, held by it and (2) any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities; provided
that unless and until such trustee actually becomes a Lender in compliance with
the other provisions of this Section 10.07, (i) no such pledge shall
release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of
the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


(j)            Notwithstanding
anything to the contrary contained herein, any L/C Issuer or the Swing Line
Lender may, upon thirty (30) days’ notice to the Borrower and the Lenders,
resign as an L/C Issuer or the Swing Line Lender, respectively; provided that on or prior to the expiration
of such 30-day period with respect to such resignation, the relevant L/C Issuer
or the Swing Line Lender shall have identified, in consultation with the
Borrower, a successor L/C Issuer or Swing Line Lender willing to accept its
appointment as successor L/C Issuer or Swing Line Lender, as applicable.  In the event of any such resignation of an
L/C Issuer or the Swing Line Lender, the Borrower shall be entitled to appoint
from among the Lenders willing to accept such appointment a successor L/C
Issuer or Swing Line Lender hereunder; provided
that no failure by the Borrower to appoint any such successor shall affect the
resignation of the relevant L/C Issuer or the Swing Line Lender, as the case
may be.  If an L/C Issuer resigns as an
L/C Issuer, it shall retain all the rights and obligations of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If the Swing Line Lender resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender provided
for hereunder with respect to Swing Line Loans made by it and outstanding as of
the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c).


 


SECTION 10.08     Confidentiality.  Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information, except that Information may be
disclosed (a) to its Affiliates and its and its Affiliates’ directors,
officers, employees, trustees, investment advisors and agents, including
accountants, legal counsel and other advisors (it being understood that 


 


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the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any Governmental Authority; (c) to
the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) subject
to an agreement containing provisions substantially the same as those of this Section 10.08
(or as may otherwise be reasonably acceptable to the Borrower), to any pledgee
referred to in Section 10.07(g), counterparty to a Swap Contract, Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement; (f) with
the written consent of the Borrower; (g) to the extent such Information
becomes publicly available other than as a result of a breach of this Section 10.08;
(h) to any Governmental Authority or examiner (including the National
Association of Insurance Commissioners or any other similar organization) regulating
any Lender; (i) to any rating agency when required by it (it being
understood that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Information relating to the
Loan Parties received by it from such Lender); or (j) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder.  In addition, the Agents and the Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to the Agents and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Credit Extensions. 
For the purposes of this Section 10.08, “Information” means all information received from any Loan
Party relating to any Loan Party or its business, other than any such information
that is publicly available to any Agent or any Lender prior to disclosure by
any Loan Party other than as a result of a breach of this Section 10.08; provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified at the time of delivery as confidential or (ii) is delivered
pursuant to Section 6.01, 6.02 or 6.03 hereof.


 


SECTION 10.09     Setoff.  In addition to any rights and remedies of the
Lenders provided by Law, upon the occurrence and during the continuance of any
Event of Default, each Lender and its Affiliates and each L/C Issuer and its
Affiliates is authorized at any time and from time to time, without prior
notice to the Borrower or any other Loan Party, any such notice being waived by
the Borrower (on its own behalf and on behalf of each Loan Party and its
Subsidiaries) to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other Indebtedness at any time owing by, such
Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case
may be, to or for the credit or the account of the respective Loan Parties and
their Subsidiaries against any and all Obligations owing to such Lender and its
Affiliates or such L/C Issuer and its Affiliates hereunder or under any other
Loan Document, now or hereafter existing, irrespective of whether or not such
Agent or such Lender or Affiliate shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness.  Each Lender and
L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent
after any such set off and application made by such Lender or L/C Issuer, as
the case may be; provided, that
the failure to give such notice shall not affect the validity of such setoff and
application.  The rights of the
Administrative Agent, each Lender and each L/C 


 


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Issuer under this Section 10.09 are in addition to other rights
and remedies (including other rights of setoff) that the Administrative Agent,
such Lender and such L/C Issuer may have.


 


SECTION 10.10     Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum
Rate”).  If any Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower.  In determining whether the interest
contracted for, charged, or received by an Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


SECTION 10.11     Counterparts.  This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  Delivery by telecopier of an
executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed
counterpart of this Agreement and such other Loan Document.  The Agents may also require that any such
documents and signatures delivered by telecopier be confirmed by a manually
signed original thereof; provided
that the failure to request or deliver the same shall not limit the effectiveness
of any document or signature delivered by telecopier.


 


SECTION 10.12     Integration.  This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter.  In the
event of any conflict between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Agents or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.


 


SECTION 10.13     Survival of
Representations and Warranties.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by each Agent and each Lender, regardless of any
investigation made by any Agent or any Lender or on their behalf and
notwithstanding that any Agent or any Lender may have had notice or knowledge
of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


 


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SECTION 10.14     Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby.  The invalidity of a provision
in a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


SECTION 10.15     Tax Forms.


 


(a)           (i)  Each Lender
and Agent that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code (each, a “Foreign Lender”)
shall, to the extent it may lawfully do so, deliver to the Borrower and the
Administrative Agent, on or prior to the date which is ten (10) Business
Days after the Closing Date (or upon accepting an assignment of an interest
herein), two duly signed, properly completed copies of either IRS Form W-8BEN
or any successor thereto (relating to such Foreign Lender and entitling it to
an exemption from, or reduction of, United States withholding tax on all payments
to be made to such Foreign Lender by the Borrower or any other Loan Party
pursuant to this Agreement or any other Loan Document) or IRS Form W-8ECI
or any successor thereto (relating to all payments to be made to such Foreign
Lender by the Borrower or any other Loan Party pursuant to this Agreement or
any other Loan Document) or such other evidence reasonably satisfactory to the
Borrower and the Administrative Agent that such Foreign Lender is entitled to
an exemption from, or reduction of, United States federal withholding tax,
including any exemption pursuant to Section 871(h) or 881(c) of
the Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c) of
the Code, a certificate that establishes in writing to the Borrower and the
Administrative Agent that such Foreign Lender is not (i) a “bank” as
defined in Section 881(c)(3)(A) of the Code, (ii) a 10-percent
stockholder within the meaning of Section 871(h)(3)(B) of the Code,
or (iii) a controlled foreign corporation related to the Borrower with the
meaning of Section 864(d) of the Code.  Thereafter and from time to time, each such
Foreign Lender shall, to the extent it may lawfully do so, (A) promptly
submit to the Borrower and the Administrative Agent such additional duly completed
and signed copies of one or more of such forms or certificates (or such
successor forms or certificates as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then
current United States Laws and regulations to avoid, or such evidence as is
reasonably satisfactory to the Borrower and the Administrative Agent of any
available exemption from, or reduction of, United States federal withholding
taxes in respect of all payments to be made to such Foreign Lender by the Borrower
or other Loan Party pursuant to this Agreement, or any other Loan Document, in
each case, (1) on or before the date that any such form, certificate or
other evidence expires or becomes obsolete, (2) after the occurrence of a
change in the Lender’s circumstances requiring a change in the most recent
form, certificate or evidence previously delivered by it to the Borrower and
the Administrative Agent and (3) from time to time thereafter if
reasonably requested by the Borrower or the Administrative Agent, and (B) promptly
notify the Borrower and the Administrative Agent of any change in the Lender’s
circumstances which would modify or render invalid any claimed exemption or
reduction.


 


(ii)           Each Foreign Lender, to
the extent it does not act or ceases to act for its own account with respect to
any portion of any sums paid or payable to such Foreign Lender under any of the
Loan Documents (for example, in the case of a typical participation by such
Foreign Lender), shall, to the extent it may lawfully do so, deliver to the
Borrower and the Administrative 


 


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Agent on the date when such Foreign Lender ceases to act for its own
account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Borrower or
the Administrative Agent (in either case, in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Foreign Lender as set forth above,
to establish the portion of any such sums paid or payable with respect to which
such Foreign Lender acts for its own account that is not subject to United
States federal withholding tax, and (B) two duly signed completed copies
of IRS Form W-8IMY (or any successor thereto), together with any
information such Foreign Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the Code, to establish
that such Foreign Lender is not acting for its own account with respect to a
portion of any such sums payable to such Foreign Lender.


 


(iii)          The Borrower shall not
be required to pay any additional amount or any indemnity payment under Section 3.01
to (A) any Foreign Lender if such Foreign Lender shall have failed to
satisfy the foregoing provisions of this Section 10.15(a), or (B) any
U.S. Lender if such U.S. Lender shall have failed to satisfy the provisions of Section 10.15(b);
provided that (i) if such
Lender shall have satisfied the requirement of this or Section 10.15(b),
as applicable, on the date such Lender became a Lender or ceased to act for its
own account with respect to any payment under any of the Loan Documents,
nothing in this Section 10.15(a) or Section 10.15(b) shall
relieve the Borrower of its obligation to pay any amounts pursuant to Section 3.01
in the event that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate and (ii) nothing
in this Section 10.15(a) shall relieve the Borrower of its obligation
to pay any amounts pursuant to Section 3.01 in the event that the
requirements of 10.15(a)(ii) have not been satisfied if the Borrower is
entitled, under applicable Law, to rely on any applicable forms and statements
required to be provided under this Section 10.15 by the Foreign Lender
that does not act or has ceased to act for its own account under any of the
Loan Documents, including in the case of a typical participation.


 


(iv)          The Administrative Agent
may deduct and withhold any taxes required by any Laws to be deducted and
withheld from any payment under any of the Loan Documents.


 


(b)           Each Lender and Agent
that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code (each, a “U.S. Lender”)
shall deliver to the Administrative Agent and the Borrower two duly signed,
properly completed copies of IRS Form W-9 on or prior to the Closing Date
(or on or prior to the date it becomes a party to this Agreement), certifying
that such U.S. Lender is entitled to an exemption from United States backup
withholding tax, or any successor form. 
If such U.S. Lender fails to deliver such forms, then the Administrative
Agent may withhold from any payment to such U.S. Lender an amount equivalent to
the applicable backup withholding tax imposed by the Code.


 


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SECTION 10.16     GOVERNING LAW.


 


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


 


(b)           ANY LEGAL ACTION OR
PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS.  THE BORROWER, EACH AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.


 


SECTION 10.17     WAIVER OF RIGHT TO TRIAL
BY JURY.  EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


SECTION 10.18     Binding Effect.  This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent shall
have been notified by each Lender, Swing Line Lender and L/C Issuer that each
such Lender, Swing Line Lender and L/C Issuer has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, each Agent and
each Lender and their respective successors and assigns, except that no
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders except as permitted by Section 7.04.


 


SECTION 10.19     Judgment Currency.  If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance 


 


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with normal banking procedures the Administrative Agent could purchase
the first currency with such other currency on the Business Day preceding that
on which final judgment is given.  The
obligation of each Borrower in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that
on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency.  If the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Borrower in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss.  If the amount
of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent agrees
to return the amount of any excess to such Borrower (or to any other Person who
may be entitled thereto under applicable Law).


 


SECTION 10.20     Lender Action.  Each Lender agrees that it shall not take or
institute any actions or proceedings, judicial or otherwise, for any right or
remedy against any Loan Party or any other obligor under any of the Loan
Documents or the Secured Hedge Agreements (including the exercise of any right
of setoff, rights on account of any banker’s lien or similar claim or other
rights of self-help), or institute any actions or proceedings, or otherwise
commence any remedial procedures, with respect to any Collateral or any other
property of any such Loan Party, without the prior written consent of the Administrative
Agent.  The provision of this Section 10.20
are for the sole benefit of the Lenders and shall not afford any right to, or
constitute a defense available to, any Loan Party.


 


SECTION 10.21     USA PATRIOT Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address
of the Borrower and other information that will allow such Lender to identify
the Borrower in accordance with the Act.


 


SECTION 10.22     Agent for Service of
Process.  The Borrower agrees that
promptly following request by the Administrative Agent it shall cause each material
Foreign Subsidiary or for whose account a Letter of Credit is issued to appoint
and maintain an agent reasonably satisfactory to the Administrative Agent to
receive service of process in New York City on behalf of such material Foreign
Subsidiary.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK.]


 


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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.


 


	
   

  	
  ORBITZ
  WORLDWIDE, INC.,

  
	
   

  	
  as
  Borrower,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  UBS AG,
  Stamford Branch, as Administrative Agent, as
  Collateral Agent and as an L/C Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  UBS LOAN
  FINANCE LLC, as a Lender and as Swing Line Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  UBS
  SECURITIES LLC, as Co-Lead Arranger and Joint
  Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  CREDIT
  SUISSE SECURITIES (USA) LLC, as Syndication Agent,
  Co-Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  LEHMAN
  BROTHERS INC., as Documentation Agent and Joint
  Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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