Exhibit 10.12


 


EXECUTION VERSION


 


CREDIT AGREEMENT



dated as of July 25, 2008



among



HSN, INC.,

as Borrower,



CERTAIN SUBSIDIARIES OF THE BORROWER,

as Guarantors,



THE LENDERS PARTY HERETO,



BANK OF AMERICA, N.A.,

as Administrative Agent and Collateral Agent,



MERRILL LYNCH CAPITAL CORPORATION,

as Syndication Agent,



BARCLAYS BANK PLC,


JPMORGAN CHASE BANK, N.A.,


MORGAN STANLEY SENIOR FUNDING, INC.


and

WACHOVIA BANK, NATIONAL ASSOCIATION,  

as Co-Documentation Agents,



BANC OF AMERICA SECURITIES LLC

and

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,


as Joint Lead Arrangers


 


and


 


BANC OF AMERICA SECURITIES LLC,


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED ,


BARCLAYS CAPITAL,


J.P. MORGAN SECURITIES INC.,


MORGAN STANLEY & CO. INCORPORATED


and


WACHOVIA CAPITAL MARKETS, LLC,


as Joint Bookrunners


 





















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND
  ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Interpretative Provisions

  	
  37

  
	
  1.03

  	
  Accounting Terms and Provisions

  	
  38

  
	
  1.04

  	
  Rounding

  	
  39

  
	
  1.05

  	
  Times of Day

  	
  39

  
	
  1.06

  	
  Exchange Rates; Currency Equivalents

  	
  39

  
	
  1.07

  	
  Change of Currency

  	
  39

  
	
  1.08

  	
  Letter of Credit Amounts

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  COMMITMENTS AND
  CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments

  	
  40

  
	
  2.02

  	
  Borrowings, Conversions and Continuations

  	
  45

  
	
  2.03

  	
  Additional Provisions with Respect to Letters of
  Credit

  	
  47

  
	
  2.04

  	
  Additional Provisions with Respect to Swingline
  Loans

  	
  55

  
	
  2.05

  	
  Repayment of Loans

  	
  58

  
	
  2.06

  	
  Prepayments

  	
  58

  
	
  2.07

  	
  Termination or Reduction of Commitments

  	
  62

  
	
  2.08

  	
  Interest

  	
  62

  
	
  2.09

  	
  Fees

  	
  63

  
	
  2.10

  	
  Computation of Interest and Fees

  	
  65

  
	
  2.11

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  65

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  67

  
	
  2.13

  	
  Evidence of Debt

  	
  68

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  TAXES, YIELD
  PROTECTION AND ILLEGALITY

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  68

  
	
  3.02

  	
  Illegality

  	
  71

  
	
  3.03

  	
  Inability to Determine Rates

  	
  72

  
	
  3.04

  	
  Increased Cost; Capital Adequacy

  	
  72

  
	
  3.05

  	
  Compensation for Losses

  	
  74

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  74

  
	
  3.07

  	
  Survival Losses

  	
  75

  
	
  3.08

  	
  Additional Reserve Costs

  	
  75

  



 


i





















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GUARANTY

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
  The Guaranty

  	
   

  	
  76

  
	
  4.02

  	
  Obligations Unconditional

  	
   

  	
  76

  
	
  4.03

  	
  Reinstatement

  	
   

  	
  77

  
	
  4.04

  	
  Certain Waivers

  	
   

  	
  78

  
	
  4.05

  	
  Remedies

  	
   

  	
  78

  
	
  4.06

  	
  Rights of Contribution

  	
   

  	
  78

  
	
  4.07

  	
  Guaranty of Payment; Continuing
  Guaranty

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
  Conditions to Closing Date

  	
   

  	
  79

  
	
  5.02

  	
  Conditions to the Funding Date

  	
   

  	
  80

  
	
  5.03

  	
  Conditions to All Credit Extensions

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  REPRESENTATIONS
  AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
  Existence, Qualification and Power

  	
   

  	
  84

  
	
  6.02

  	
  Authorization; No Contravention

  	
   

  	
  85

  
	
  6.03

  	
  Governmental Authorization; Other
  Consents

  	
   

  	
  85

  
	
  6.04

  	
  Binding Effect

  	
   

  	
  85

  
	
  6.05

  	
  Financial Statements

  	
   

  	
  85

  
	
  6.06

  	
  No Material Adverse Effect

  	
   

  	
  86

  
	
  6.07

  	
  Litigation

  	
   

  	
  86

  
	
  6.08

  	
  No Default

  	
   

  	
  86

  
	
  6.09

  	
  Ownership of Property; Liens

  	
   

  	
  86

  
	
  6.10

  	
  Taxes

  	
   

  	
  87

  
	
  6.11

  	
  ERISA Compliance

  	
   

  	
  87

  
	
  6.12

  	
  Subsidiaries

  	
   

  	
  88

  
	
  6.13

  	
  Margin Regulations; Investment
  Company Act

  	
   

  	
  88

  
	
  6.14

  	
  Disclosure

  	
   

  	
  88

  
	
  6.15

  	
  Compliance with Laws

  	
   

  	
  88

  
	
  6.16

  	
  Solvency

  	
   

  	
  89

  
	
  6.17

  	
  Intellectual Property; Licenses,
  Etc.

  	
   

  	
  89

  
	
  6.18

  	
  Security Agreement

  	
   

  	
  89

  
	
  6.19

  	
  Pledge Agreement

  	
   

  	
  90

  
	
  6.20

  	
  Mortgages

  	
   

  	
  90

  



 


ii





















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  



 


	
  ARTICLE VII

  
	
   

  
	
  AFFIRMATIVE
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Financial Statements

  	
  91

  
	
  7.02

  	
  Certificates; Other Information

  	
  92

  
	
  7.03

  	
  Notification

  	
  94

  
	
  7.04

  	
  Preservation of Existence

  	
  94

  
	
  7.05

  	
  Payment of Taxes and Other Obligations

  	
  94

  
	
  7.06

  	
  Compliance with Law

  	
  95

  
	
  7.07

  	
  Maintenance of Property

  	
  95

  
	
  7.08

  	
  Insurance

  	
  95

  
	
  7.09

  	
  Books and Records

  	
  95

  
	
  7.10

  	
  Inspection Rights

  	
  96

  
	
  7.11

  	
  Use of Proceeds

  	
  96

  
	
  7.12

  	
  Joinder of Subsidiaries as Guarantors

  	
  96

  
	
  7.13

  	
  Pledge of Capital Stock

  	
  97

  
	
  7.14

  	
  Pledge of Other Property

  	
  97

  
	
  7.15

  	
  Further Assurances Regarding Collateral

  	
  98

  
	
  7.16

  	
  Post-Closing Matters

  	
  99

  
	
  7.17

  	
  FCC Licenses

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  NEGATIVE
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Liens

  	
  100

  
	
  8.02

  	
  Investments

  	
  103

  
	
  8.03

  	
  Indebtedness

  	
  105

  
	
  8.04

  	
  Mergers and Dissolutions

  	
  108

  
	
  8.05

  	
  Dispositions

  	
  109

  
	
  8.06

  	
  Restricted Payments

  	
  109

  
	
  8.07

  	
  Change in Nature of Business

  	
  110

  
	
  8.08

  	
  Change in Accounting Practices or Fiscal Year

  	
  110

  
	
  8.09

  	
  Transactions with Affiliates

  	
  110

  
	
  8.10

  	
  Financial Covenants

  	
  111

  
	
  8.11

  	
  Limitation on Subsidiary Distributions

  	
  111

  
	
  8.12

  	
  Spin-Off

  	
  112

  
	
  8.13

  	
  Transfers/Investments with respect to Certain
  Subsidiaries

  	
  112

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  EVENTS OF
  DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Events of Default

  	
  112

  
	
  9.02

  	
  Remedies upon Event of Default

  	
  115

  
	
  9.03

  	
  Application of Funds

  	
  116

  
					



 


iii





















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  



 


ARTICLE X




AGENTS


 


	
  10.01

  	
  Appointment and Authorization of Administrative
  Agent and Collateral Agent

  	
  117

  
	
  10.02

  	
  Rights as a Lender

  	
  118

  
	
  10.03

  	
  Exculpatory Provisions

  	
  118

  
	
  10.04

  	
  Reliance by Administrative Agent and Collateral
  Agent

  	
  119

  
	
  10.05

  	
  Delegation of Duties

  	
  119

  
	
  10.06

  	
  Resignation of the Administrative Agent or the
  Collateral Agent

  	
  120

  
	
  10.07

  	
  Non-Reliance on Administrative Agent, Collateral
  Agent and Other Lenders

  	
  121

  
	
  10.08

  	
  No Other Duties

  	
  121

  
	
  10.09

  	
  Administrative Agent or Collateral Agent
  May File Proofs of Claim

  	
  121

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  122

  
	
  10.11

  	
  Withholding Tax

  	
  123

  
	
  10.12

  	
  Treasury Management Agreements and Swap Contracts

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  11.01

  	
  Amendments, Etc.

  	
  123

  
	
  11.02

  	
  Notices; Effectiveness; Electronic Communication

  	
  126

  
	
  11.03

  	
  No Waiver; Cumulative Remedies; Enforcement

  	
  128

  
	
  11.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  129

  
	
  11.05

  	
  Payments Set Aside

  	
  131

  
	
  11.06

  	
  Successors and Assigns

  	
  131

  
	
  11.07

  	
  Treatment of Certain Information; Confidentiality

  	
  136

  
	
  11.08

  	
  Right of Setoff

  	
  137

  
	
  11.09

  	
  Interest Rate Limitation

  	
  138

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  138

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  138

  
	
  11.12

  	
  Severability

  	
  139

  
	
  11.13

  	
  Replacement of Lenders

  	
  139

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  140

  
	
  11.15

  	
  Waiver of Jury Trial

  	
  141

  
	
  11.16

  	
  USA PATRIOT Act Notice

  	
  141

  
	
  11.17

  	
  Designation as Senior Debt

  	
  142

  
	
  11.18

  	
  No Advisory or Fiduciary Responsibility

  	
  142

  
	
  11.19

  	
  Certain FCC Matters

  	
  142

  



 


iv





















 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  



 


	
  ARTICLE XII

  
	
   

  	
   

  	
   

  
	
  FOREIGN
  CURRENCY PARTICIPATIONS

  
	
   

  	
   

  	
   

  
	
  12.01

  	
  Alternative Currency Participations

  	
  143

  
	
  12.02

  	
  Settlement Procedure for Alternative Currency
  Participations

  	
  144

  
	
  12.03

  	
  Obligations Irrevocable

  	
  146

  
	
  12.04

  	
  Recovery or Avoidance of Payments

  	
  146

  
	
  12.05

  	
  Indemnification by Lenders

  	
  147

  



 


v





















 


SCHEDULES


 


	
  Schedule
  1.01A

  	
   

  	
  Existing
  Letters of Credit

  
	
  Schedule
  1.01B

  	
   

  	
  Funding
  Date Guarantors

  
	
  Schedule
  1.01C

  	
   

  	
  Mortgaged
  Property

  
	
  Schedule
  2.01

  	
   

  	
  Lenders
  and Commitments

  
	
  Schedule
  3.08

  	
   

  	
  Mandatory
  Cost Rate

  
	
  Schedule
  5.01(c)(ii)

  	
   

  	
  Scheduled
  Matters

  
	
  Schedule
  5.02(d)(ii)

  	
   

  	
  Title
  Policies

  
	
  Schedule
  6.12

  	
   

  	
  Subsidiaries

  
	
  Schedule
  7.08

  	
   

  	
  Insurance

  
	
  Schedule
  7.16(d)

  	
   

  	
  Landlord
  Access Agreements

  
	
  Schedule
  8.01

  	
   

  	
  Existing
  Liens

  
	
  Schedule
  8.02

  	
   

  	
  Existing
  Investments

  
	
  Schedule
  8.03

  	
   

  	
  Existing
  Indebtedness

  
	
  Schedule
  11.02

  	
   

  	
  Notice
  Addresses

  



 


EXHIBITS


 


	
  Exhibit 1.01A

  	
   

  	
  Form of
  Pledge Agreement

  
	
  Exhibit 1.01B

  	
   

  	
  Form of
  Security Agreement

  
	
  Exhibit 1.01C

  	
   

  	
  Form of
  Landlord Access Agreement

  
	
  Exhibit 1.01D

  	
   

  	
  Form of
  Mortgage

  
	
  Exhibit 2.02

  	
   

  	
  Form of
  Loan Notice

  
	
  Exhibit 2.13-1

  	
   

  	
  Form of
  Revolving Note

  
	
  Exhibit 2.13-2

  	
   

  	
  Form of
  Swingline Note

  
	
  Exhibit 2.13-4

  	
   

  	
  Form of
  Term Note

  
	
  Exhibit 3.01(e)

  	
   

  	
  Form of
  Non-Bank Certificate

  
	
  Exhibit 7.02(b)

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit 7.12

  	
   

  	
  Form of
  Joinder Agreement

  
	
  Exhibit 11.06

  	
   

  	
  Form of
  Assignment and Assumption

  



 


vi


















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT (this “Credit Agreement”) is entered into as of July 25,
2008, among HSN, INC., a Delaware corporation (the “Borrower”), the
Guarantors identified herein, the Lenders party hereto, and BANK OF AMERICA,
N.A., as Administrative Agent and Collateral Agent.


 


W I T N E S S E T H


 


WHEREAS,
the Borrower and the Guarantors have requested that the Lenders provide
revolving credit and term loan facilities for the purposes set forth herein;
and


 


WHEREAS,
the Lenders have agreed to make the requested facilities available on the terms
and conditions set forth herein;


 


NOW,
THEREFORE, in consideration of these premises and the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined Terms.


 


As
used in this Credit Agreement, the following terms have the meanings provided below:


 


“Acquisition”
means the purchase or acquisition (whether in one or a series of related
transactions) by any Person of (a) more than fifty percent (50%) of the
Capital Stock with ordinary voting power of another Person or (b) all or
substantially all of the property (other than Capital Stock) of another Person
or division or line of business or business unit of another Person, whether or
not involving a merger or consolidation with such Person.


 


“Adjusted Eurodollar Rate” means,
with respect to any Borrowing of Eurodollar Rate Loans for any Interest Period,
(a) an interest rate per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Rate for such Borrowing of Eurodollar Rate Loans in effect for
such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Borrowing of
Eurodollar Rate Loans for such Interest Period.


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02, or such other address or account
as the Administrative Agent may from time to time notify the Borrower and the
Lenders.


 

















 


“Administrative
Questionnaire” means an administrative questionnaire for the Lenders 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.


 


“Agent” means either of the
Administrative Agent or the Collateral Agent.


 


“Aggregate
Commitment Percentage” means, for each Lender, a fraction (expressed as a
percentage carried to the ninth decimal place), the numerator of which is the
amount of such Lender’s respective Revolving Commitment and Term Loan
Commitment and the denominator of which is the Aggregate Commitments.


 


“Aggregate
Commitments” means the aggregate principal amount of the Revolving
Commitments and Term Loan Commitments.


 


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


 


“Aggregate
Revolving Committed Amount” has the meaning provided in Section 2.01(a)(i).


 


“Aggregate
Term Loan Committed Amount” means one hundred fifty million Dollars ($150.0
million).


 


“Alternative
Currency” means each of Euros, Canadian Dollars and Sterling.


 


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


 


“Alternative
Currency Fronting Lender” means Bank of America, N.A.


 


“Alternative
Currency Funding Capacity” means, at any date of determination, for any
Revolving Lender, the ability of such Revolving Lender to fund Revolving Loans
denominated in the applicable Alternative Currency, as set forth in the records
of the Administrative Agent as notified in writing by such Revolving Lender to
the Administrative Agent within three (3) Business Days of such Revolving
Lender becoming a Revolving Lender hereunder.


 


“Alternative
Currency Loan” has the meaning set forth in Section 12.01.


 


“Alternative
Currency Participation” has the meaning set forth in Section 12.01.


 


“Alternative
Currency Participation Settlement” has the meaning set forth in Section 12.02(i).


 


2

















 


“Alternative
Currency Participation Settlement Amount” has the meaning set forth in Section 12.02(ii).


 


“Alternative
Currency Participation Settlement Date” has the meaning set forth in Section 12.02(i).


 


“Applicable
Percentage” means the following percentages per annum:


 


APPLICABLE PERCENTAGES FOR REVOLVING LOANS,

SWINGLINE LOANS,

LETTER OF CREDIT FEES AND TERM LOANS


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Total

  Leverage Ratio

  	
   

  	
  Eurodollar

  Rate Loans

  (other than for

  Revolving

  Loans)

  	
   

  	
  Base Rate

  Loans (other

  than for

  Revolving

  Loans)

  	
   

  	
  Eurodollar

  Rate Loans

  (for

  Revolving

  Loans) and

  Letter of

  Credit Fees

  	
   

  	
  Base Rate

  Loans (for

  Revolving

  Loans)

  	
   

  
	
  I

  	
   

  	
  < 1.50:1.00

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  II

  	
   

  	
  3 1.50
  but < 2.00:1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  
	
  III

  	
   

  	
  3 2.00
  but < 2.50:1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  
	
  IV

  	
   

  	
  3 2.50:1.00

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  



 


Applicable
Percentages for Revolving Loans, Swingline Loans, Letter of Credit Fees and
Term Loans will be based on the Consolidated Total Leverage Ratio as set forth
in the most recent Compliance Certificate received by the Administrative Agent pursuant
to Section 7.02(b).  Any
increase or decrease in such Applicable Percentage resulting from a change in
the Consolidated Total Leverage Ratio shall become effective on the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b); provided, however,
that if (i) a Compliance Certificate is not delivered when due in
accordance therewith or (ii) an Event of Default pursuant to Section 9.01(a),
(f) or (h) has occurred and is continuing, then, in the
case of clause (i)  pricing level
IV shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until the first
Business Day immediately following delivery thereof, and in the case of clause
(ii) pricing level IV shall apply as of the first Business Day after
the occurrence of such Event of Default until the first Business Day
immediately following the cure or waiver of such Event of Default.  The Applicable Percentage in effect from the
Closing Date through the date for delivery of the Compliance Certificate for
the first full fiscal quarter ending after the Closing Date shall be determined
based upon pricing level III for Revolving Loans, Swingline Loans, Letter of
Credit Fees and Term Loans.


 


3

















 


Determinations
by the Administrative Agent of the appropriate pricing level shall be conclusive
absent manifest error.


 


In the
event that any financial statement or Compliance Certificate delivered pursuant
to Section 7.01 or 7.02 is shown to be inaccurate
(regardless of whether this Credit Agreement or the Commitments are in effect
or any Loans are outstanding when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Percentage for any period (an “Applicable Period”) than the
Applicable Percentage applied for such Applicable Period, and only in such
case, then the Borrower shall immediately (i) deliver to the
Administrative Agent a corrected Compliance Certificate for such Applicable
Period, (ii) determine the Applicable Percentage for such Applicable
Period based upon the corrected Compliance Certificate, and (iii) immediately
pay to the Administrative Agent the accrued additional interest owing as a
result of such increased Applicable Percentage for such Applicable Period,
which payment shall be promptly applied by the Administrative Agent in
accordance with Section 2.11. 
The rights of the Administrative Agent and Lenders pursuant to this
paragraph are in addition to rights of the Administrative Agent and Lenders
with respect to Sections 2.08(b) and 9.02 and other of their
respective rights under the Credit Documents.


 


“Applicable
Period” has the meaning assigned to such term in the definition of Applicable
Percentage.


 


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


 


“Approved
Currency” means each of Dollars and each Alternative Currency.


 


“Approved
Fund” means any Fund that is administered, managed or underwritten by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 11.06) and accepted by the Administrative Agent
and, if required by Section 11.06, the Borrower, in substantially the form
of Exhibit 11.06 or any other form approved by the Administrative
Agent.


 


“Attributable
Principal Amount” means (a) in the case of capital leases, the amount
of capital lease obligations determined in accordance with GAAP, (b) in
the case of Synthetic Leases, an amount determined by capitalization of the
remaining lease payments thereunder as if it were a capital lease determined in
accordance with GAAP, and (c) in the case of Sale and Leaseback
Transactions, the present value (discounted in accordance with GAAP at the debt
rate implied in the applicable lease) of the obligations of the lessee for
rental payments during the term of such lease).


 


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


 


4

















 


“BAS”
means Banc of America Securities LLC, together with its successors.


 


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


 


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


 


“Borrower”
has the meaning provided in the recitals hereto, together with its successors
and permitted assigns pursuant to Section 8.04.


 


“Borrowing”
means (a) a borrowing consisting of simultaneous Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period, or (b) a
borrowing of Swingline Loans, as appropriate.


 


“Business
Day” means any day (other than a day which is a Saturday, Sunday, or other
day on which banks in New York are authorized or required by law to close); provided;
however, that (a) when used in connection with a rate
determination, borrowing, or payment in respect of a Eurodollar Rate Loan, the
term “Business Day” shall also exclude any day on which banks in London,
England are not open for dealings in deposits of Dollars or foreign currencies,
as applicable, in the London Interbank Market, (b) if such day relates to
any dealings in any currency other than Dollars to be carried out pursuant to
this Credit Agreement, the term “Business Day” shall also exclude any day on
which banks are not open for foreign exchange dealings between banks in the
home country of such foreign currency.


 


“Canadian
Dollars” and “C$” means the lawful currency of Canada.


 


“Capital
Stock” means (a) in the case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company,
membership interests and (e) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


“Cash
Collateralize” has the meaning provided in Section 2.03(g).


 


“Cash
Equivalents” means (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve (12)
months from the date of acquisition, (b) Dollar-denominated time deposits,
money market deposits and certificates of deposit of (i) any Lender that
accepts such deposits in the ordinary course of such Lender’s business, (ii) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500.0 million or (iii) any bank whose short-term 


 


5

















 


commercial paper rating from S&P is at least A-1
or from Moody’s is at least P-1, in each case with maturities of not more than
two hundred seventy (270) days from the date of acquisition, (c) commercial
paper issued by any issuer bearing at least an “A-2” rating for any short-term
rating provided by S&P and/or Moody’s and maturing within two hundred
seventy (270) days of the date of acquisition, (d) repurchase agreements
entered into by the Borrower with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess
of $500.0 million for direct obligations issued by or fully guaranteed by the
United States and having, on the date of purchase thereof, a fair market value
of at least one hundred percent (100%) of the amount of the repurchase
obligations, (e) Investments (classified in accordance with GAAP as
current assets) in money market investment programs registered under the
Investment Company Act of 1940, as amended, that are administered by reputable
financial institutions having capital and surplus of at least $500.0 million
and the portfolios of which are limited to Investments of the character
described in the foregoing subclauses hereof, (f) shares of mutual funds
if no less than 95% of such funds’ investments satisfy the provisions of
clauses (a) through (e) above, and (g) in the case of any
Foreign Subsidiary, short-term investments of comparable credit quality and
tenor to those referred to in clauses (a) through (f) above
which are customarily used for cash management purposes in any country in which
such Foreign Subsidiary operates.


 


“Change
in Law” means the occurrence, after the Closing Date, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.


 


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


 


(a)           any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) other than a Permitted Holder becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934),
directly or indirectly, of forty percent (40%) or more of the equity securities
of the Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully diluted basis;


 


(b)           during
any period of twelve (12) consecutive months, a majority of the members of the
board of directors or other equivalent governing body of the Borrower cease to
be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by a Permitted Holder or
by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both clauses
(ii) and (iii), any individual whose initial nomination for, or



 


6

















 


assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of
one (1) or more directors by or on behalf of the board of directors); or


 


(c)           a “change
of control” or any comparable term under, and as defined in, any of the
documentation relating to the Senior Notes shall have occurred.


 


“Closing
Date” means the date hereof.


 


“Collateral”
means the collateral identified in, and at any time covered by, the Collateral
Documents.


 


“Collateral
Agent” means Bank of America in its capacity as collateral agent for the
Lenders under any of the Collateral Documents, or any successor collateral
agent.


 


“Collateral
Documents” means the Security Agreement, the Pledge Agreement, the
Mortgages and any other documents executed and delivered in connection with the
attachment and perfection of security interests granted to secure the
Obligations.


 


“Commercial
Letter of Credit Fee” has the meaning provided in Section 2.09(b).


 


“Commitment
Fee” has the meaning provided in Section 2.09(a).


 


 “Commitment Letter” means the
Commitment Letter dated as of June 19, 2008 among the Borrower, Bank of
America, MLBUSA, Barclays Bank PLC, JPMorgan Chase Bank, N.A., Morgan Stanley
Senior Funding, Inc., Wachovia Bank, National Association, Banc of America
Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Barclays Capital, the investment banking division of Barclays Bank PLC,  J.P. Morgan Securities Inc. and Wachovia
Capital Markets, LLC, together with all schedules and annexes thereto.


 


“Commitment
Period” means the period from and including the Closing Date to the earlier
of (a)(i) in the case of Revolving Loans and Swingline Loans, the
Revolving Termination Date (ii) in the case of the Letters of Credit, the
L/C Expiration Date or (iii) in the case of the Term Loans, the Funding
Date, or (b) in the case of the Revolving Loans, Swingline Loans and the
Letters of Credit, the date on which the applicable Revolving Commitments shall
have been terminated as provided herein.


 


“Commitments”
means the Revolving Commitment, the L/C Commitments, the Swingline Commitment
and the Term Loan Commitments.


 


“Communications
Law” means the Federal Communications Act of 1934, as amended, and the respective
rules and regulations thereunder and thereof.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit 7.02(b).


 


“Consolidated
Capital Expenditures” means, for any period for the Consolidated Group,
without duplication, all expenditures with respect to property, plant and
equipment during such 


 


7

















 


period which should be capitalized in accordance with
GAAP (including the Attributable Principal Amount of capital leases).


 


“Consolidated
EBITDA” means, without duplication, for any period for the Consolidated
Group, Consolidated Net Income in such period plus
(A) in each case solely to the extent decreasing Consolidated Net Income
in such period: (a) Consolidated Interest Expense (without giving effect
to the second proviso of the definition of Consolidated Interest Expense), (b) provision
for taxes, to the extent based on income or profits, (c) amortization and
depreciation, (d) the amount of all expenses incurred in connection with
the closing and funding of this Credit Agreement, the Senior Notes or the
Transactions, (e) the amount of all non-cash deferred compensation
expense, (f) the amount of all expenses associated with the early
extinguishment of Indebtedness permitted hereunder incurred, (g) any
losses from sales of Property, other than from sales in the ordinary course of
business, (h) any non-cash impairment loss of goodwill or other
intangibles required to be taken pursuant to GAAP, (i) any non-cash
expense recorded with respect to stock options or other equity-based
compensation, (j) any extraordinary loss in accordance with GAAP, (k) any
restructuring, non-recurring or other unusual item of loss or expense
(including write-offs and write-downs of assets), other than any write-off or
write-down of inventory or accounts receivable; provided that the
aggregate amount of any such losses or expenses in cash shall not exceed $6.0
million in such period, (l) any non-cash loss related to discontinued operations
and (m) any other non-cash charges (other than write-offs or write-downs
of inventory or accounts receivable); provided that, in the case of any
non-cash charge referred to in this definition of Consolidated EBITDA that
relates to accruals or reserves for a future cash disbursement, such future
cash disbursement shall be deducted from Consolidated EBITDA in the period when
such cash is so disbursed; minus (B) in
each case solely to the extent increasing Consolidated Net Income in such
period: (a) any extraordinary gain in accordance with GAAP, (b) any
nonrecurring item of gain or income (including write-ups of assets), other than
any write-up of inventory or accounts receivable, (c) any gains from sales
of Property, other than from sales in the ordinary course of business, (d) any
non-cash gain related to discontinued operations and (e) the aggregate
amount of all other non-cash items increasing Consolidated Net Income during
such period; provided that in the case of any non-cash item referred to
in clause (B) of this definition of Consolidated EBITDA that relates to a
future cash payment to the Borrower or a Subsidiary, such future cash payment
shall be added to Consolidated EBITDA in the period when such payment is so
received by Borrower or such Subsidiary.


 


Subject
to the following sentence, Consolidated EBITDA for the fiscal quarters ended September 30,
2007, December 31, 2007, and March 31, 2008 shall be deemed to be
$53.9 million, $89.1 million and $33.1 million, respectively. Without
duplication of any adjustments reflected in the amounts set forth in the
immediately preceding sentence, Consolidated EBITDA for any period shall be
calculated on a Pro Forma Basis pursuant to Section 1.03(b).


 


“Consolidated
Excess Cash Flow” means, for any period for the Consolidated Group, (a) net
cash provided by operating activities for such period as reported on the audited
GAAP cash flow statement delivered under Section 7.01(a) minus
(b) the sum of, in each case to the extent not otherwise reducing net cash
provided by operating activities in such period, without duplication, (i) scheduled
principal payments and payments of interest in each case made in cash on
Consolidated Total Funded Debt during such period (including for purposes
hereof, sinking fund payments, payments in respect of the principal components
under capital leases and the like


 


8

















 


relating thereto), in each case other than in
connection with a refinancing thereof, (ii) Consolidated Capital
Expenditures made in cash during such period that are not financed with the
proceeds of Indebtedness, an issuance of Capital Stock or from a reinvestment
of Net Cash Proceeds referred to in Section 2.06(b)(ii), (iii) optional
prepayments of Funded Debt during such period (other than prepayments of
Revolving Loans owing under this Credit Agreement (unless, in the case of a
prepayment of Revolving Loans, there is a simultaneous reduction in the
Aggregate Revolving Commitments in the amount of such prepayment pursuant to Section 2.07)
and other such optional prepayments made with the proceeds of other
Indebtedness), (iv) to the extent not financed with the incurrence or
assumption of Indebtedness or proceeds from an issuance of Capital Stock,
Subject Dispositions, Specified Dispositions or Involuntary Dispositions, cash
sums expended for Investments pursuant to Section 8.02(c),  (i),
(k) (other than with respect to any amount expended on such
Investments through the use of the Cumulative Credit) or (v) during
such period, and (v) without duplication of amounts deducted from
Consolidated Excess Cash Flow in prior periods, the aggregate consideration
required to be paid in cash by the Borrower or any Subsidiary pursuant to
binding contracts (the “Contract Consideration”) entered into prior to
or during such period relating to Consolidated Capital Expenditures to be
consummated or made during the three months following the end of such period, provided that to the extent the aggregate amount of
internally generated cash actually utilized to finance such Consolidated
Capital Expenditures during such three months is less than the Contract
Consideration, the amount of such shortfall shall be added to Consolidated
Excess Cash Flow for the period following such period.


 


“Consolidated
Group” means the Borrower and its consolidated Subsidiaries, as determined
in accordance with GAAP.


 


“Consolidated
Interest Coverage Ratio” means, as of the last day of each fiscal quarter
for the period of four (4) consecutive fiscal quarters then ending, the
ratio of (i) Consolidated EBITDA of the Consolidated Group to (ii) Consolidated
Interest Expense of the Consolidated Group.


 


“Consolidated
Interest Expense” means, for any period, the sum of the total interest expense
of the Consolidated Group (calculated without regard to any limitations on the
payment thereof) plus, without duplication, the interest component under
capital leases determined on a consolidated basis; provided that the
amortization of deferred financing, legal and accounting costs with respect to
this Credit Agreement and the Senior Notes shall be excluded from Consolidated
Interest Expense to the extent the same would otherwise have been included
therein; provided further that subject to adjustment for
events occurring after the Funding Date pursuant to Section 1.03(b),
Consolidated Interest Expense for any period ending prior to the first anniversary
of the Funding Date shall be determined by multiplying (x) Consolidated
Interest Expense from and including the Funding Date to and including the last
day of such period by (y) a fraction, the numerator of which is 365 and
the denominator of which is the number of days in such period.


 


Without
duplication of any adjustments reflected in the calculations set forth in the
second proviso of the immediately preceding sentence, Consolidated Interest
Expense shall be calculated on a Pro Forma Basis pursuant to Section 1.03(b).


 


9

















 


“Consolidated
Net Income” means, for any period for the Consolidated Group, the net income
(or loss), determined on a consolidated basis (after any deduction for minority
interests) of the Consolidated Group in accordance with GAAP, provided
that (i) in determining Consolidated Net Income, the net income of any
other Person which is not a Subsidiary of the Borrower or is accounted for by
the Borrower by the equity method of accounting shall be included only to the
extent of the payment of cash dividends or cash distributions by such other
Person to a member of the Consolidated Group during such period, (ii) the
net income of any Subsidiary of the Borrower (other than a Guarantor) that is
not distributed to the Borrower or a Guarantor shall be excluded to the extent
that the declaration or payment of cash dividends or similar cash distributions
by that Subsidiary of that net income is not at the date of determination
permitted by operation of its Organization Documents or any agreement,
instrument or law applicable to such Subsidiary and (iii) the cumulative
effect of any change in accounting principles shall be excluded.  Consolidated Net Income shall be calculated
on a Pro Forma Basis pursuant to Section 1.03(b).


 


“Consolidated
Total Assets” means the
total assets of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP, as shown on the most recent balance sheet
of the Borrower required to have been delivered pursuant to Section 7.01(a) or
(b) or, for the period prior to the time any such statements are
required to be so delivered pursuant to Section 7.01(a) or (b),
as shown on the financial statements referred to in the first sentence of Section 6.05.


 


“Consolidated
Total Funded Debt” means, without duplication, at any time, the principal
amount of all Funded Debt of the Consolidated Group at such time determined on
a consolidated basis (it being understood and agreed that (i) outstanding
undrawn commercial letters of credit in an aggregate principal amount not to
exceed $50.0 million shall not constitute Funded Debt, (ii) standby
letters of credit shall constitute Funded Debt, (iii) all outstanding
undrawn commercial letters of credit in an aggregate principal amount in excess
of $50.0 million shall constitute Funded Debt and (iv) all drawn and
unreimbursed letters of credit shall constitute Funded Debt).


 


“Consolidated
Total Leverage Ratio” means, as of the last day of each fiscal quarter, the
ratio of (i) Consolidated Total Funded Debt on such day to (ii) Consolidated
EBITDA of the Consolidated Group for the period of four (4) consecutive
fiscal quarters ending as of such day.


 


“Contract
Consideration” has the meaning assigned to such term in the definition of
Consolidated 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”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Credit
Agreement” has the meaning provided in the recitals hereto, as the same may
be amended and modified from time to time.


 


10














 


“Credit
Documents” means this Credit Agreement, the Notes, the Collateral
Documents, the Fee Letter, the Issuer Documents, the Joinder Agreements, and
the Revolving Lender Joinder Agreements and the Incremental Term Loan Joinder
Agreement.


 


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


 


“Credit
Parties” means the Borrower and each Subsidiary of the Borrower that is a
party to a Credit Document.


 


“Credit
Party Materials” has the meaning provided in Section 7.02.


 


“Cumulative
Credit” means, with respect to any proposed use of the Cumulative Credit at
any time, an amount equal to (a) the sum of (i)(A) the amount of
Consolidated Excess Cash Flow less (B) the ECF Application Amount for (x) in
the case of the fiscal year of the Borrower ending December 31, 2008, the
first full fiscal quarter completed after the Funding Date and (y) in the
case of each fiscal year of the Borrower ending after December 31, 2008,
such fiscal year, in each case to the extent the financial statements required
to be delivered for such fiscal year pursuant to Section 7.01(a) have
been delivered and all prepayments that may be required pursuant to Section 2.06(b)(iv) with
respect to the Consolidated Excess Cash Flow generated in such fiscal year have
been made plus (ii) the aggregate amount of Net Cash Proceeds of any
issuance of Qualified Capital Stock of the Borrower (but not including any
issuance or purchase referred to in Sections 8.02(c), (r) or
8.06(h)) after the Funding Date and at or prior to such time, plus (iii) in
the case of a use of the Cumulative Credit to make an Investment pursuant to Section 8.02(k) only,
the amount of 50% of Domestic Cash, plus (b) to
the extent not otherwise reflected in Consolidated Excess Cash Flow, the amount
of cash returns on any Investment made pursuant to Section 8.02(k) (other
than any Investment subsequently deemed to be made pursuant to Section 8.02(e))
in a Person other than the Borrower or a Subsidiary (to the extent such
Investment was made through the use of the Cumulative Credit) resulting from
interest payments, dividends, repayments of loans or advances or profits from
Dispositions of Property, in each case to the extent actually received by the
Borrower or a Guarantor at or prior to such time minus
(c) the aggregate amount of Investments and Restricted Payments made since
the Funding Date pursuant to Sections 8.02(k) (excluding
Investments subsequently deemed to have been made pursuant to Section 8.02(e))
and 8.06(f), respectively, through utilization of the Cumulative Credit
(excluding such proposed use of the Cumulative Credit (but including any other
simultaneous proposed use of the Cumulative Credit)).


 


“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, act or condition that constitutes an Event of Default or that,
with notice, the passage of time, or both, would constitute an Event of
Default.


 


11

















 


“Default
Rate” means an interest rate equal to (a) with respect to Obligations
other than (i) Eurodollar Rate Loans and (ii) Letter of Credit Fees,
the Base Rate plus the Applicable Percentage, if any, applicable to such
Loans plus two percent (2%) per annum; (b) with respect to
Eurodollar Rate Loans, the Adjusted Eurodollar Rate plus the Applicable
Percentage, if any, applicable to such Loans plus two percent (2%) per
annum; and (c) with respect to Letter of Credit Fees, a rate equal to the
Applicable Percentage plus two percent (2%) per annum.


 


“Defaulting
Lender” means any Lender as of any date of determination that (a) has
failed to fund any portion of the Loans, participations in L/C Obligations or
participations in Swingline Loans required to be funded by it hereunder within
one (1) Business Day of the date required to be funded by it hereunder and
has not cured such failure prior to the date of determination, (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, and has
not cured such failure prior to the date of determination, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any Property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith (but excluding the making of any Investment pursuant to Section 8.02).


 


“Disqualified
Capital Stock” means Capital Stock that (a) requires the payment of
any dividends or distributions (other than dividends or distributions payable
solely in shares of Capital Stock other than Disqualified Capital Stock) prior
to the date that is the first anniversary of the Final Maturity Date or (b) matures
or is mandatorily redeemable or subject to mandatory repurchase or redemption
or repurchase at the option of the holders thereof, in whole or in part and
whether upon the occurrence of any event, pursuant to a sinking fund
obligation, on a fixed date or otherwise, in each case prior to the date that
is the first anniversary of the Final Maturity Date (other than upon payment in
full of the Obligations (other than contingent indemnification obligations for
which no claim has been made) and termination of the Commitments).


 


“Dollar”
or “$” means the lawful currency of the United States.


 


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


 


“Domestic
Cash” means the amount of cash and Cash Equivalents (not to exceed $50.0
million in the aggregate) reflected in the bank statements of the Borrower and
the Borrower’s Domestic Subsidiaries immediately after giving effect to the
Transactions (but not including any proceeds of Revolving Loans or Swingline
Loans), to the extent such amount is unrestricted as of 


 


12

















 


the Spin-Off Date after giving effect to the
Transactions (including without limitation all payments pursuant to Section 4.04
of the Separation Agreement).


 


“Domestic
Credit Party” means any Credit Party that is organized under the laws of
any State of the United States or the District of Columbia.


 


“Domestic
Subsidiary” means any Subsidiary that is not a Foreign Subsidiary, other
than any Subsidiary the Capital Stock of which is to be transferred to IAC or
one or more of IAC’s Subsidiaries (other than the Borrower and its
Subsidiaries) in connection with the Spin-Off.


 


“ECF
Application Amount” means, with respect to any fiscal year of the Borrower,
the product of the ECF Percentage applicable to such fiscal year times the
Consolidated Excess Cash Flow for such fiscal year.


 


“ECF
Percentage” means, with respect to any fiscal year of the Borrower (x) ending
on December 31, 2008, zero percent (0%) and (y) ending after December 31,
2008, if the Consolidated Total Leverage Ratio as of the last day of such
fiscal year is (i) greater than or equal to 2.25:1.00, fifty percent
(50%), (ii) less than 2.25:1.00 but greater than or equal to 1.75:1.00,
twenty-five percent (25%) and (iii) less than 1.75:1.00, zero percent
(0%).


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person)
approved by the party or parties whose approval is required under Section 11.06(b);
provided that notwithstanding the foregoing, “Eligible Assignee” shall
not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


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


 


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


 


“Environmental
Liability” means any liability, contingent or otherwise (including any liability
for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower, any other Credit Party or any of their
respective Subsidiaries 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.


 


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


 


13

















 


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


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower 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 the Borrower 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 that would
reasonably be expected to constitute 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 the Borrower or any ERISA Affiliate.


 


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


 


“Eurodollar Rate” means, with
respect to any Borrowing of Eurodollar Rate Loans for any Interest Period, the
rate per annum determined by the Administrative Agent to be the arithmetic mean
of the offered rates for deposits in the relevant Approved Currency with a term
comparable to such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at approximately
11:00 a.m. (London time) on the second full Business Day preceding the
first day of such Interest Period; provided,  however,
that (i) if no comparable term for an Interest Period is available, the
Eurodollar Rate shall be determined using the weighted average of the offered
rates for the two terms most nearly corresponding to such Interest Period and (ii) if
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, “Eurodollar Rate” shall mean, with respect to
each day during each Interest Period pertaining to a Borrowing of Eurodollar
Rate Loans comprising part of the same Borrowing, the rate per annum equal to
the rate at which the Administrative Agent is offered deposits in the relevant
Approved Currency at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period in the London interbank
market for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to its portion of the amount
of such Borrowing to be outstanding during such Interest Period.  “Telerate
British Bankers Assoc. Interest Settlement Rates Page” shall mean
the display designated as Reuters Screen LIBOR01 Page (or such other page as
may replace such page on such service for the purpose of displaying the
rates at which the relevant Approved Currency deposits are offered by leading
banks in the London interbank deposit market).


 


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


 


“Event
of Default” has the meaning provided in Section 9.01.


 


14

















 


“Excluded
Sale and Leaseback Transaction” means any Sale and Leaseback Transaction
with respect to Property owned by the Borrower or any Subsidiary to the extent
such Property is acquired after the Funding Date, so long as such Sale and
Leaseback Transaction is consummated within 180 days of the acquisition of such
Property.


 


“Excluded
Property” means (a) vehicles, (b) subject to Section 7.15(b),
fee interests in real property with a fair market value of less than $2.5
million, (c) subject to Section 7.15(b), leasehold real
property with a fair market value of less than $3.5 million, (d) those
assets as to which the Administrative Agent shall reasonably determine in
writing that the costs of obtaining such security interest are excessive in
relation to the value of the security to be afforded thereby, (e) assets
if the granting or perfecting of a security interest in such assets in favor of
the Collateral Agent would violate any applicable Law, (f) any right,
title or interest in any license, contract or agreement to the extent, but only
to the extent, that a grant of a security interest therein to secure the
Obligations would, under the terms of such license, contract or agreement,
result in a breach of the terms of, or constitute a default under, or result in
the abandonment, invalidation or unenforceability of, such license, contract or
agreement (other than to the extent that any such term would be rendered ineffective
pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or
any other applicable law (including, without limitation, Title 11 of the United
States Code) or principles of equity), (g) any Capital Stock acquired
after the Closing Date (other than Capital Stock in a Subsidiary issued or
acquired after such Person became a Subsidiary) in accordance with this Credit
Agreement if, and to the extent that, and for so long as (i) such Capital
Stock constitutes less than 100% of all applicable Capital Stock of such
person, and the Person or Persons holding the remainder of such Capital Stock
are not Affiliates of the Borrower, (ii) doing so would violate applicable
law or a contractual obligation binding on such Capital Stock and (iii) with
respect to such contractual obligations (other than contractual obligations in
connection with a joint venture agreement), such obligation existed at the time
of the acquisition of such Capital Stock and was not created or made binding on
such Capital Stock in contemplation of or in connection with the acquisition of
such Subsidiary, (h) any Property purchased with the proceeds of purchase
money Indebtedness or that is subject to a capital lease, in each case,
existing or incurred pursuant to Sections 8.03(b) or (c) if
the contract or other agreement in which the Indebtedness and/or Liens related
thereto is granted (or the documentation providing for such capital lease
obligation) prohibits or requires the consent of any Person other than a member
of the Consolidated Group as a condition to the creation of any other security
interest on such Property and (i) any Property that is to be transferred
to IAC or one or more of its Subsidiaries (other than the Borrower or any of
its Subsidiaries) pursuant to the Separation Agreement in connection with the
Spin-Off.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of any Credit Party hereunder or under any other Credit Document, (a) Taxes
imposed on or measured by its overall net income (however denominated) and
franchise Taxes imposed on it (in lieu of net income Taxes) by any jurisdiction
(or any political subdivision thereof) as a result of such recipient being
organized in or having its principal office or applicable Lending Office in such jurisdiction or as a result of any
other present or former connection with such jurisdiction (other than any such
connections arising solely from such recipient having executed, delivered, or become
a party to, performed its obligations or received payments under, received or
perfected a security interest under, engaged in any other transaction
specifically contemplated by, or enforced,


 


15

















 


any Credit Documents),
(b) any branch profits taxes imposed under Section 884(a) of the
Internal Revenue Code or any similar tax imposed by any other jurisdiction
described in clause (a) and (c) in the case of a recipient
(other than an assignee pursuant to a request by the Borrower under Section 11.13),
any U.S. federal withholding Tax that (i) is imposed on amounts payable to
such recipient pursuant to Laws in effect at the time such recipient becomes a
party hereto (or designates a new Lending Office), except to the extent that
such recipient (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a),
or (ii) is attributable to a recipient’s failure to comply with Section 3.01(e).


 


“Existing Letters of Credit”  means the letters of credit listed on Schedule 1.01A
and any other letter of credit issued for the benefit of any Credit Party by
either L/C Issuer from and after the date hereof until the Funding Date.


 


“FCC”
means the Federal Communications Commission, and any successor entity performing
similar functions.


 


“FCC
Licenses” means all authorizations, licenses and permits issued by the FCC.


 


“Facility
Fee” has the meaning provided in Section 2.09(a).


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day
immediately 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 1/100th
of 1%) charged to Bank of America on such day on such transactions as determined
by the Administrative Agent.


 


“Fee
Letter” means the letter agreement, dated June 19, 2008, among the
Borrower, Wachovia, Bank of America and MLBUSA and the other parties thereto.


 


“Final Maturity Date” means, at any
time, the latest of the Revolving Termination Date, the Term Loan Termination
Date and any final maturity date applicable to any outstanding Incremental Term
Loans at such time.


 


“First-Tier
Foreign Subsidiary” means any Foreign Subsidiary that is owned directly by
a Domestic Credit Party.


 


“Flood Insurance Laws”
means, collectively, (i) the National Flood Insurance Act of 1968 as now
or hereafter in effect or any successor statute thereto, (ii) the Flood
Disaster Protection Act of 1973 as now or hereafter in effect or any successor
statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as
now or hereafter in effect or any successor statute thereto and (iv) the
Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor
statute thereto.


 


16

















 


“Foreign
Lender” means any Lender or L/C Issuer that is not a United States person under
Section 7701(a)(30) of the Internal Revenue Code.


 


“Foreign
Subsidiary” means (i) any Subsidiary that is not incorporated, formed
or organized under the laws of the United States of America, any State thereof,
or the District of Columbia and (ii) any Subsidiary of a Subsidiary
described in the foregoing clause (i).


 


 “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 (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“Funded
Alternative Currency Participation” means, with respect to any
Participating Alternative Currency Lender relating to Alternative Currency
Loans funded by the Alternative Currency Fronting Lender, the aggregate amount
paid by such Participating Alternative Currency Lender to the Alternative
Currency Fronting Lender pursuant to Section 12.02 of this Credit Agreement
in respect of such Participating Alternative Currency Lender’s participation in
the principal amount of Alternative Currency Loans funded by the Alternative
Currency Fronting Lender.  The Alternative
Currency Fronting Lender’s Funded Alternative Currency Participation in any
Alternative Currency Loans funded by the Alternative Currency Fronting Lender
shall be equal to the outstanding principal amount of such Alternative Currency
Loans minus the total Funded Alternative
Currency Participation of all other Lenders therein.


 


“Funded
Debt” 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 for borrowed money,
whether current or long-term (including the Loan Obligations hereunder), and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;


 


(b)                            all purchase money indebtedness
(including indebtedness and obligations in respect of conditional sales and
title retention arrangements, except for customary conditional sales and title
retention arrangements with suppliers that are entered into in the ordinary
course of business) and all indebtedness and obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable
incurred in the ordinary course of business);


 


(c)                             all direct obligations under letters of
credit (including standby and commercial), bankers’ acceptances and similar
instruments;


 


(d)                            the Attributable Principal Amount of
capital leases;


 


(e)                             the amount of all obligations of such
person with respect to the redemption, repayment or other repurchase of any
Disqualified Capital Stock (excluding accrued dividends that have not increased
the liquidation preference of such Disqualified Capital 


 


17

















 


Stock);


 


(f)                               Support Obligations in respect of Funded
Debt of another Person; and


 


(g)                            Funded Debt of any partnership or joint
venture or other similar entity in which such Person is a general partner or
joint venturer, and has personal liability for such obligations, but only to
the extent there is recourse to such Person for payment thereof.


 


For purposes hereof, the amount of Funded Debt shall
be determined (i) based on the outstanding principal amount in the case of
borrowed money indebtedness under clause (a) and purchase money
indebtedness and the deferred purchase obligations under clause (b), (ii) based
on the maximum face amount in the case of letter of credit obligations and the
other obligations under clause (c), and (iii) based on the amount
of Funded Debt that is the subject of the Support Obligations in the case of
Support Obligations under clause (f). 
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the L/C Application therefor, whether or not such
maximum face amount is in effect at such time.


 


“Funding
Date” means the date when the conditions specified under Section 5.02
and 5.03 hereof are satisfied or waived and the initial Credit Extension
hereunder is made.


 


“GAAP”
means generally accepted accounting principles in effect in the United States
as set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board from time to
time applied on a consistent basis, subject to the provisions of Section 1.03.  For the avoidance of doubt, for any period
prior to the consummation of the Spin-Off, any financial definitions for the
Borrower and its Subsidiaries shall be calculated on a combined basis
consistent with the financial statements described in Section 6.05.


 


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


 


“Granting
Lender” has the meaning provided in Section 11.06(h).


 


“Guaranteed
Obligations” has the meaning provided in Section 4.01(a).


 


“Guarantors”
means, (a) as of the Funding Date each Subsidiary of the Borrower listed
on Schedule 1.01B and (b) after the Funding Date each other Person
that becomes a Guarantor pursuant to the terms hereof, in each case together
with its successors.


 


“Hazardous
Materials” means all materials, substances or wastes characterized,
classified or regulated as hazardous, toxic, pollutant, contaminant or
radioactive under Environmental 


 


18

















 


Laws, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes.


 


“Hedge
Bank” has the meaning provided in the definition of Obligations.


 


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


 


“IAC”
means IAC/InterActiveCorp, a Delaware corporation.


 


“IAC
Dividend” means one or more cash dividends to be paid by the Borrower,
directly or indirectly, to IAC in an approximate aggregate amount of $400.0
million.


 


“Immaterial
Subsidiary” means, at any date of determination, any Subsidiary of the Borrower
designated as such in writing by the Borrower that had assets representing 1.0%
or less of the Borrower’s Consolidated Total Assets on, and generated less than
1.0% of the Borrower’s and its Subsidiaries’ total revenues for the four
quarters ending on, the last day of the most recent period at the end of which
financial statements were required to be delivered pursuant to Section 7.01(a) or
(b) or, if such date of determination is prior to the first delivery date
under such Sections, on (or, in the case of revenues, for the four quarters
ending on) the last day of the period of the most recent financial statements referred
to in the first sentence of Section 6.05; provided that if all
Subsidiaries that are individually “Immaterial Subsidiaries” have aggregate
Consolidated Total Assets that would represent 2.5% or more of the Borrower’s
Consolidated Total Assets on such last day or generated 2.5% or more of the
Borrower’s and its Subsidiaries’ total revenues for such four fiscal quarters,
then such number of Subsidiaries of the Borrower as are necessary shall become
Material Subsidiaries so that less than 2.5% of the Borrower’s Consolidated
Total Assets and less than 2.5% of the Borrower’s and its Subsidiaries’ total
revenues are represented by Immaterial Subsidiaries as of such last day or for
such four quarters, as the case may be (it being understood that any such determination
with respect to revenues and assets shall be made on a Pro Forma Basis).


 


“Incremental
Loan Facilities” has the meaning provided in Section 2.01(e).


 


“Incremental
Revolving Commitments” has the meaning provided in Section 2.01(e).


 


“Incremental
Term Loan” has the meaning provided in Section 2.01(e).


 


“Incremental
Term Loan Joinder Agreement” means a lender joinder agreement, in a form
reasonably satisfactory to the Administrative Agent, the Borrower and each
Lender extending Incremental Term Loans, executed and delivered in accordance
with the provisions of Section 2.01(g).


 


“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 Funded Debt;


 


(b)                            net obligations under Swap Contracts;


 


19

















 


(c)          Support Obligations in respect of
Indebtedness of another Person; and


 


(d)                            Indebtedness of any partnership or joint
venture or other similar entity in which such Person is a general partner or
joint venturer, and has personal liability for such obligations, but only to
the extent there is recourse to such Person for payment thereof.


 


For purposes hereof, the amount of Indebtedness shall
be determined (i) based on Swap Termination Value in the case of net
obligations under Swap Contracts under clause (b) and (ii) based
on the outstanding principal amount of the Indebtedness that is the subject of
the Support Obligations in the case of Support Obligations under clause (c).


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitee”
has the meaning provided in Section 11.04(b).


 


“Information”
has the meaning provided in Section 11.07.


 


“Interest
Payment Date” means, (a) as to any Base Rate Loan (including Swingline
Loans), the last Business Day of each March, June, September and December,
the Revolving Termination Date and the date of the final principal amortization
payment on the Term Loans and, in the case of any Swingline Loan, any other
dates as may be mutually agreed upon by the Borrower and the Swingline Lender,
and (b) as to any Eurodollar Rate Loan, the last Business Day of each
Interest Period for such Loan, the date of repayment of principal of such Loan,
the Revolving Termination Date and the date of the final principal amortization
payment on the Term Loans, and in addition, where the applicable Interest
Period exceeds three (3) months, the date every three (3) months
after the beginning of such Interest Period. 
If an Interest Payment Date falls on a date that is not a Business Day,
such Interest Payment Date shall be deemed to be the immediately succeeding
Business Day.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one (1), two (2), three (3) or
six (6) and, with prior written consent of all applicable Lenders, nine (9) or
twelve (12) months thereafter, as selected by the Borrower in its Loan Notice
or such other period that is twelve months or less requested by the Borrower
and consented to by all the directly affected Lenders; provided that:


 


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


 


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


 


20














 


(c)           no Interest Period
with respect to any Revolving Loan shall extend beyond the Revolving Termination
Date; and


 


(d)           no Interest Period
with respect to the Term Loans shall extend beyond any principal amortization
payment date for such Loans, except to the extent that the portion of such Loan
comprised of Eurodollar Rate Loans that is expiring prior to the applicable
principal amortization payment date plus the portion comprised of Base
Rate Loans equals or exceeds the principal amortization payment then due.


 


“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time.


 


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


 


“Involuntary
Disposition” means the receipt by any member of the Consolidated Group of
any cash insurance proceeds or condemnation awards payable by reason of theft,
loss, physical destruction or damage, loss of use, taking or similar event with
respect to any of its Property.


 


“IP
Rights” has the meaning provided in Section 6.17.


 


“IRS”
means the United States Internal Revenue Service.


 


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


 


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


 


“Joinder
Agreement” means a joinder agreement substantially in the form of Exhibit 7.12,
executed and delivered in accordance with the provisions of Section 7.12.


 


“Landlord Access Agreement” shall
mean a Landlord Access Agreement, substantially in the form of Exhibit 1.01C,
or such other form as may reasonably be acceptable to the Administrative Agent.


 


21

















 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes,
executive orders 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, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, including, without
limitation, Environmental Laws.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing.  All
L/C Advances shall be denominated in Dollars.


 


“L/C
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
applicable L/C Issuer.


 


“L/C
Borrowing” means any extension of credit resulting from a drawing under any
Letter of Credit that has not been reimbursed or refinanced as a Borrowing of
Revolving Loans.  Each L/C Borrowing
shall be denominated in Dollars.


 


“L/C
Commitment” means, with respect to any L/C Issuer, the commitment of such
L/C Issuer to issue and to honor payment obligations under Letters of Credit,
and, with respect to each Lender, the commitment of such Lender to purchase
participation interests in L/C Obligations up to such Lender’s Revolving
Commitment Percentage thereof.


 


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


 


“L/C
Expiration Date” means the day that is seven (7) days prior to the
Revolving Termination Date then in effect (or, if such day is not a Business
Day, the immediately preceding Business Day).


 


“L/C
Issuers” means Bank of America and Wachovia each in its capacity as an
issuer of Letters of Credit hereunder, together with its respective successors
in such capacity; provided that no other Lender shall be obligated to
become an L/C Issuer hereunder.


 


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


 


“L/C
Sublimit” has the meaning provided in Section 2.01(b).


 


“Lead
Arrangers” means BAS and MLPFS.


 


22

















 


“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto
(and, as appropriate, includes the Swingline Lender) and each Person who joins
as a Lender pursuant to the terms hereof, together with its successors and
permitted assigns.


 


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


 


“Letter
of Credit” means each standby and commercial letter of credit issued
hereunder and shall include the
Existing Letters of Credit.


 


“Letter
of Credit Fee” has the meaning provided in Section 2.09(b)(i).


 


“License
Subsidiary” means a Domestic Subsidiary of the Borrower which (i) is a
Guarantor, (ii) is formed for the limited purpose of holding FCC Licenses
used in the business of the Borrower and its Subsidiaries, (iii) does not
have any material liabilities other than under the Credit Documents and (iv) is
not engaged in any substantial business activities other than holding such FCC
Licenses.


 


“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
financing lease having substantially the same economic effect as any of the
foregoing).


 


“Loan”
means any Revolving Loan, Swingline Loan, Term Loan or Incremental Term Loan,
and the Base Rate Loans and Eurodollar Rate Loans comprising such Loans.


 


“Loan
Notice” means a notice of (a) a Borrowing of Loans (including
Swingline Loans), (b) a conversion of Loans from one (1) Type to the
other, or (c) a continuation of Eurodollar Rate Loans, which, if in
writing, shall be substantially in the form of Exhibit 2.02.


 


“Loan
Obligations” means the Revolving Obligations, the Term Loans and
Incremental Term Loans.


 


“Major
Disposition” means any Subject Disposition (or any series of related
Subject Dispositions) or any Involuntary Disposition (or any series of related
Involuntary Dispositions), in each case resulting in the receipt by a member of
the Consolidated Group of Net Cash Proceeds in excess of $15.0 million.


 


“Mandatory
Cost Rate” has the meaning provided in Schedule 3.08.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities
(actual or contingent) or financial condition of the Borrower and its
Subsidiaries, taken as a whole; (b) a material impairment of the rights
and remedies of the Administrative Agent, Collateral Agent or any Lender under
any material Credit Document; or (c) a material adverse effect upon the
legality, validity, binding 


 


23

















 


effect or the enforceability against any Credit Party
of any material Credit Document to which it is a party.


 


“Material
Subsidiary” means each Subsidiary of the Borrower other than an Immaterial
Subsidiary.


 


“MLBUSA”
means Merrill Lynch Bank USA, together with its successors.


 


“MLPFS”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated, together
with its successors.


 


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


 


“Mortgaged Property” means (a) each
real property identified as a Mortgaged Property on Schedule 1.01C
and (b) each real property, if any, which shall be subject to a Mortgage
delivered after the Closing Date pursuant to Section 7.16.


 


“Mortgages”
means those mortgages, deeds of trust, security deeds or like instruments given
by the Credit Parties, as grantors, to the Collateral Agent to secure the Obligations
which shall be substantially in the form of Exhibit 1.01D or otherwise
reasonably satisfactory to the Collateral Agent, and any other such instruments
that may be given by any Person pursuant to the terms hereof, as such instruments
may be amended and modified from time to time.


 


“Multiemployer
Plan” means any employee pension benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five (5) plan years, has made
or been obligated to make contributions.


 


“Net
Cash Proceeds” means the aggregate proceeds paid in cash or Cash
Equivalents received by any member of the Consolidated Group in connection with
any Subject Disposition, Involuntary Disposition or incurrence of Indebtedness
or issuance of Capital Stock, net of (a) attorneys’ fees, accountants’
fees, investment banking fees, sales commissions, underwriting discounts,
survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, required debt
payments and required payments of other obligations relating to the applicable
asset to the extent such debt or obligations are secured by a Lien permitted
hereunder (other than a Lien granted pursuant to a Credit Document) on such asset,
other customary expenses and brokerage, consultant and other customary fees, in
each case, actually incurred in connection therewith and directly attributable
thereto, (b) Taxes paid or payable as a result thereof (estimated
reasonably and in good faith by the Borrower and after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (c) solely
with respect to a Subject Disposition, the amount of any reasonable reserve
established in accordance with GAAP against any adjustment to the sale price or
any liabilities (other than any taxes deducted pursuant to clause (b) above)
(i) related to any of the Property Disposed of in such Subject Disposition
and (ii) retained by the Borrower or any of the Subsidiaries including
pension and other post-employment benefit liabilities and liabilities related
to environmental matters or against any indemnification obligations (provided,
however, the amount of any subsequent reduction of such reserve (other
than in connection with a payment in respect of any such liability) shall be
deemed to be Net Cash Proceeds from and after the date of such reduction).  


 


24

















 


For purposes hereof, “Net Cash Proceeds” includes any
cash or Cash Equivalents received upon the Disposition of any non-cash
consideration received by any member of the Consolidated Group in any Subject
Disposition or Involuntary Disposition.


 


“New
York UCC” means the Uniform Commercial Code as from time to time in effect
in the State of New York.


 


“Non-Bank
Certificate”  has the meaning
provided in Section 3.01(e)(iii).


 


“Non-Extension
Notice Date” has the meaning provided in Section 2.03(b)(iii).


 


“Notes”
means the Revolving Notes, the Swingline Note and the Term Notes.


 


“Obligations”
means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party arising under any Credit
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 Credit Party of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding, (b) all obligations under
any Swap Contract between any Credit Party and any Lender or Affiliate of a
Lender or any Person that was a Lender or Affiliate of a Lender at the time it
entered into such Swap Contract, to the extent such Swap Contract is otherwise
permitted hereunder (each, in such capacity, a “Hedge Bank”) and (c) all
obligations under any Treasury Management Agreement between any Credit Party
and any Lender or Affiliate of a Lender or any Person that was a Lender or
Affiliate of a Lender at the time it entered into such Treasury Management
Agreement (each, in such capacity, a “Treasury Management Bank”).


 


“OID”
has the meaning provided in Section 2.01(g)(v).


 


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


 


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


 


“Outstanding
Amount” means (a) with respect to Revolving Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after
giving effect to any Borrowings and prepayments or repayments of Revolving
Loans occurring on such date; 


 


25

















 


(b) with respect to Swingline Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Swingline Loans occurring on such
date; (c) with respect to any L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts and (d) with respect to the Term Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
prepayments or repayments of the Term Loans 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 Bank of
America in the applicable offshore interbank market for such currency to major
banks in such interbank market.


 


“Participant”
has the meaning provided in Section 11.06(d).


 


“Participant
Register” has the meaning provided in Section 11.06(d).


 


“Participating
Alternative Currency Lender” has the meaning set forth in Section 12.01.


 


“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 the Borrower or
any ERISA Affiliate or to which the Borrower 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” means any Acquisition; provided that (i) no
Default or Event of Default shall have occurred and be continuing or exist immediately
after giving effect to such Acquisition, (ii) after giving effect on a Pro
Forma Basis to the Investment to be made, as of the last day of the most
recently ended fiscal quarter at the end of which financial statements were
required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10 (and if such Acquisition involves
consideration greater than $10.0 million, then the Borrower shall deliver a
certificate of a Responsible Officer as to the satisfaction of the requirements
in this clause (ii)) and (iii) if such Acquisition involves
consideration in excess of $10.0 million (or if the total of all consideration
for all Acquisitions since the Closing Date exceeds $30.0 million), all assets
acquired in such Acquisition shall be held by the Borrower or a Guarantor and
all Persons acquired in such Acquisition shall become Guarantors; provided
further that the Borrower 


 


26

















 


may elect to allocate consideration expended in such
Acquisition for Property to be held by members of the Consolidated Group that
are not the Borrower or Guarantors or Acquisitions of Subsidiaries that are not
Guarantors to Investments made pursuant to Section 8.02(k), or to
the extent the consideration comes from a Foreign Subsidiary, Section 8.02(g),
so long as capacity to make such Investments pursuant to the applicable Section is
available at the time of such allocation (and any consideration so allocated
shall reduce capacity for Investments pursuant to such Sections to the extent
that capacity for such Investments are limited by such Sections), and to the extent
such consideration is in fact so allocated to one of such Sections in
accordance with the foregoing requirements, such consideration shall not count
toward the $10.0 million and $30.0 million limitations set forth in this clause
(iii).


 


“Permitted
Business” means the businesses of the Borrower and its Subsidiaries conducted
on the Closing Date and any business reasonably related, ancillary or
complementary thereto and any reasonable extension thereof.


 


“Permitted
Holders” means each of (a) Barry Diller and (b) Liberty Media
Corporation, and, in each case, such Person’s Affiliates and any group with
respect to which any such Persons (including Affiliates) collectively exercise
a majority of the voting power.  Prior to
the Spin-Off, IAC and its Subsidiaries will also be deemed to be Permitted
Holders.


 


“Permitted
Liens” means Liens permitted pursuant to Section 8.01.


 


“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) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Internal Revenue Code or Title IV of ERISA,
any ERISA Affiliate.


 


“Platform”
has the meaning provided in Section 7.02.


 


“Pledge
Agreement” means the pledge agreement substantially in the form of Exhibit 1.01A
(it being understood that the pledgors party thereto and schedules thereto
shall be reasonably satisfactory to the Administrative Agent), given by the
Credit Parties, as pledgors, to the Collateral Agent to secure the Obligations,
and any other pledge agreements that may be given by any Person pursuant to the
terms hereof, in each case as the same may be amended and modified from time to
time.


 


“Pro
Forma Basis” means, with respect to any Subject Disposition, Specified
Disposition, Acquisition, Incremental Loan Facilities or the Transactions, for
purposes of determining the applicable pricing level under the definition of “Applicable
Percentage” and determining compliance with the financial covenants and
conditions and the requirements of the definition of “Immaterial Subsidiary”
hereunder, that such Subject Disposition, Specified Disposition, Acquisition,
Incremental Loan Facilities or the Transactions shall be deemed to have
occurred as of the first day of the period of four (4) consecutive fiscal
quarters ending as of the end of the most recent fiscal quarter for which
annual or quarterly financial statements shall have been delivered in
accordance with the provisions hereof, after giving effect to any Pro Forma
Cost Savings.  Further, for purposes of
making calculations on a “Pro Forma Basis” hereunder, (a) in the case of 


 


27

















 


any Subject Disposition or Specified Disposition, (i) income
statement items (whether positive or negative) attributable to the property,
entities or business units that are the subject of such Subject Disposition or
Specified Disposition shall be excluded to the extent relating to any period
prior to the date thereof and (ii) Indebtedness paid or retired in
connection with such Subject Disposition or Specified Disposition shall be
deemed to have been paid and retired as of the first day of the applicable
period; and (b) in the case of any Acquisition, (i) income statement
items (whether positive or negative) attributable to the property, entities or
business units that are the subject thereof shall be included to the extent
relating to any period prior to the date thereof and (ii) Indebtedness
incurred in connection with such Acquisition shall be deemed to have been incurred
as of the first day of the applicable period (and interest expense shall be
imputed for the applicable period assuming prevailing interest rates hereunder).


 


“Pro
Forma Cost Savings” means, with respect to any period, the reduction in net
costs and related adjustments that (i) were directly attributable to an
Acquisition, Subject Disposition or Specified Disposition that occurred during
the four-quarter reference period or subsequent to the four-quarter reference
period and on or prior to the date of determination and calculated on a basis
that is consistent with Regulation S-X under the Securities Laws, as amended
and in effect and applied as of the date hereof, (ii) were actually
implemented by the business that was the subject of any such Acquisition,
Subject Disposition or Specified Disposition or actually implemented by the
Borrower and its Subsidiaries in connection with such Acquisition, Subject Disposition
or Specified Disposition, in each case, within 12 months after the date of the
Acquisition, Subject Disposition or Specified Disposition and prior to the date
of determination that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to (A) the
business that is the subject of or (B) the business of the Borrower and
its Subsidiaries arising from any such Acquisition, Subject Disposition or
Specified Disposition and that the Borrower reasonably determines are probable
based upon specifically identifiable actions to be taken within 12 months of
the date of the Acquisition, Subject Disposition or Specified Disposition and,
in each case, are described, as provided below, in a certificate from a
Responsible Officer of the Borrower, as if all such reductions in costs had
been effected as of the beginning of such period.  Pro Forma Cost Savings described above shall
be accompanied by a certificate from a Responsible Officer of the Borrower
delivered to the Administrative Agent that outlines the specific actions taken
or to be taken, the net cost savings achieved or to be achieved from each such
action and that, in the case of clause (iii) above, such savings have
been determined to be probable; provided that such net costs and related
adjustments referred to in clauses (ii) and (iii) shall not
exceed $10.0 million in any period for which Consolidated EBITDA is calculated.


 


“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 outstanding Term Loans (or, prior to the
Funding Date, Term Loan Commitments) or Revolving Commitments, as applicable,
of such Lender at such time and the denominator of which is the aggregate
amount of Term Loans (or, prior to the Funding Date, Term Loan Commitments) or
Revolving Commitments, as applicable, at such time; provided that if
such Revolving Commitments have been terminated, then the Pro Rata Share of
each applicable 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.


 


28

















 


“Property”
means an interest of any kind in any property or asset, whether real, personal
or mixed, and whether tangible or intangible.


 


“Qualified
Capital Stock” means any Capital Stock of the Borrower other than Disqualified
Capital Stock.


 


“Register”
has the meaning provided in Section 11.06(c).


 


“Registered
Public Accounting Firm” has the meaning provided in the Securities Laws and
shall be independent of the Borrower as prescribed by the Securities Laws.


 


“Regulation D” means Regulation D
of the Board of Governors of the Federal Reserve System of the United States as
from time to time in effect and all official rulings and interpretations thereunder
or thereof.


 


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


 


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


 


“Request
for Credit Extension” means (a) with respect to a Borrowing of Loans
(including Swingline Loans) a Loan Notice and (b) with respect to an L/C
Credit Extension, a L/C Application.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
fifty percent (50%) of the sum of (i) the Term Loan Commitments (or, from
and after the initial borrowings hereunder, the Term Loans) and (ii) the
Aggregate Revolving Commitments (or, if the Revolving Commitments shall have
expired or been terminated, the Revolving Obligations (including, in each case,
the aggregate amount of each Lender’s risk participation and funded participation
in L/C Obligations and Swingline Loans)); provided that the Commitments
of, and the portion of the Loan Obligations held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.


 


“Required
Revolving Lenders” means, as of any date of determination, Lenders having
more than fifty percent (50%) of the Aggregate Revolving Commitments or, if the
Revolving Commitments shall have expired or been terminated, Lenders holding
more than fifty percent (50%) of the aggregate principal amount of Revolving
Obligations (including, in each case, the aggregate principal amount of each
Lender’s risk participation and funded participation in L/C Obligations and
Swingline Loans); provided that the Revolving Commitment of, and the
portion of Revolving Obligations held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Revolving Lenders.


 


“Required
Term Lenders” means, as of any date of determination, Lenders holding more
than fifty percent (50%) of the aggregate principal amount of Term Loan
Commitments (or, from and after the initial borrowings hereunder, the Term
Loans); provided that the Term Loan 


 


29

















 


Commitments held or deemed held by any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Term Lenders.


 


“Responsible
Officer” means the chief executive officer, chief operating officer, the
president, any executive vice president, the chief financial officer, the chief
accounting officer,  the treasurer, any
assistant treasurer, any vice president, any senior vice president, the
secretary or the general counsel of a Credit Party, any manager of a Credit
Party that is a limited liability company or the general partner of a Credit
Party that is a limited partnership.  Any
document delivered hereunder that is signed by a Responsible Officer of a
Credit Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Credit
Party, and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Credit Party.


 


“Restricted
Payment” means (i) any dividend or other distribution (whether in cash,
securities or other property) with respect to any Capital Stock of any member
of the Consolidated Group, (ii) any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancellation or termination
of any such Capital Stock or of any option, warrant or other right to acquire
any such Capital Stock or (iii) any payment or prepayment of principal on
or redemption, repurchase or acquisition for value of, any (x) Indebtedness
of any member of the Consolidated Group that is not secured by a Lien or (y) Subordinated
Debt of any member of the Consolidated Group, except in each case, any
scheduled payment of principal.


 


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


 


“Revolving
Committed Amount” means, for each Revolving Lender, the amount of such
Lender’s Revolving Commitment.  The
Dollar Equivalent of the initial Revolving Committed Amounts are set forth in Schedule
2.01.


 


“Revolving
Commitment” means, for each Revolving Lender, the commitment of such Lender
to make Revolving Loans (and to share in Revolving Obligations) hereunder.


 


“Revolving
Commitment Percentage” means, for each Revolving Lender, a fraction (expressed
as a percentage carried to the ninth decimal place), the numerator of which is
such Revolving Lender’s Revolving Committed Amount and the denominator of which
is the Aggregate Revolving Committed Amount. 
The initial Revolving Commitment Percentages are set forth in Schedule
2.01.


 


30














 


“Revolving
Lender Joinder Agreement” means a joinder agreement, in a form to be agreed
among the Administrative Agent, the Borrower and each Lender with an
Incremental Revolving Commitment, executed and delivered in accordance with the
provisions of Section 2.01(f).


 


“Revolving
Lenders” means those Lenders with Revolving Commitments, together with
their successors and permitted assigns. 
The initial Revolving Lenders are identified on the signature pages hereto
and are set forth in Schedule 2.01.


 


“Revolving
Loan” has the meaning provided in Section 2.01(a).


 


“Revolving
Notes” means the promissory notes, if any, given to evidence the Revolving
Loans, as amended, restated, modified, supplemented, extended, renewed or
replaced.  A form of Revolving Note is attached
as Exhibit 2.13-1.


 


“Revolving
Obligations” means the Revolving Loans, the L/C Obligations and the
Swingline Loans.


 


“Revolving
Termination Date” means the fifth anniversary of the Closing Date.


 


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


 


“Sale
and Leaseback Transaction” means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any Person (other
than a Credit Party) whereby the Borrower or such Subsidiary shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.


 


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


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


“Scheduled
Matter” has the meaning provided in Section 5.01(c)(ii).


 


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


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the foregoing may
be amended and in effect on any applicable date hereunder.


 


31

















 


“Security
Agreement” means the security agreement substantially in the form of Exhibit 1.01B,
(it being understood that the grantors party thereto and schedules thereto
shall be reasonably satisfactory to the Administrative Agent), given by Credit
Parties, as grantors, to the Collateral Agent to secure the Obligations, and
any other security agreements that may be given by any Person pursuant to the
terms hereof, in each case as the same may be amended and modified from time to
time.


 


“Senior
Notes” means the Borrower’s 11.25% Senior Notes due 2016 in an aggregate
principal amount of $240.0 million and any exchange notes issued in exchange
therefor pursuant to the registration rights agreement executed in connection
with the issuance thereof.


 


“Separation
Agreement” means the Separation Agreement to be dated on or prior to
Spin-Off Date among the Borrower, Interval Leisure Group, Inc., Ticketmaster,
Tree.com and IAC, together with all schedules, annexes, exhibits and other attachments
thereto.


 


“Significant
Subsidiary” means (1) any Subsidiary that satisfies the criteria for a
“significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X under the Securities Laws, as such Regulation is in effect on
the Closing Date (with the references to 10% in such Rule being deemed to
be 5.0% for the purposes of this definition), and (2) any Subsidiary that,
when aggregated with all other Subsidiaries that are not otherwise Significant
Subsidiaries and as to which any event described in Section 9.01(f) or
(h) has occurred and is continuing, would constitute a Significant
Subsidiary under clause (1) of this definition.


 


“Solvent”
means, with respect to any Person, as of any date of determination, (a) the
Fair Value and Present Fair Saleable Value of the aggregate assets of such
Person exceeds the value of its Liabilities; (b) such Person will not
have, as of such date, an unreasonably small amount of capital with which to
conduct its business; (c) such Person will be able to pay its Liabilities
as they mature or become absolute; and (d) the Fair Value and Present Fair
Saleable Value of the aggregate assets of such Person exceeds the value of its
Liabilities by an amount that is not less than the capital of such Subject
Entity (as determined pursuant to Section 154 of the Delaware General
Corporate Law). The term “Solvency” shall have an equivalent meaning.
For the purposes of this definition, “Fair Value” means the aggregate
amount at which the assets of the applicable entity (including goodwill) would
change hands between a willing buyer and a willing seller, within a commercially
reasonable amount of time, each having reasonable knowledge of the relevant
facts, neither being under any compulsion to act and with equity to both; “Present
Fair Saleable Value” means the aggregate amount of net consideration
(giving effect to reasonable and customary costs of sale or taxes) that could
be expected to be realized if the aggregate assets of the applicable entity are
sold with reasonable promptness in an arm’s length transaction under present
conditions for the sale of assets of comparable business enterprises; and “Liabilities”
means all debts and other liabilities of the applicable entity, whether
secured, unsecured, fixed, contingent, accrued or not yet accrued.


 


“SPC”
has the meaning provided in Section 11.06(h).


 


“Specified
Disposition” means any Disposition referred to in clause (a) of the
definition of Subject Disposition, to the extent a material amount of Property
is disposed of in such Disposition.


 


32

















 


“Specified
Intercompany Transfers” means a Disposition of Property by a Credit Party
to a member of the Consolidated Group that is not a Credit Party.


 


“Spin-Off”
means the spin-off of the Borrower from IAC pursuant to the Separation
Agreement, such that from and after such spin-off, the Borrower will exist as a
separate publicly traded entity.


 


“Spin-Off
Date” means the date upon which the Spin-Off is consummated.


 


“Spot
Rate” for a currency means the rate determined by the Administrative Agent
or any L/C Issuer, as applicable, to be the rate quoted by the Person acting in
such capacity as the spot rate for the purchase by such Person of such currency
with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. (London time) on the date two (2) Business
Days prior to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent or any L/C Issuer may obtain such spot rate from
another financial institution designated by the Administrative Agent or such
L/C Issuer if the Person acting in such capacity does not have as of the date
of determination a spot buying rate for any such currency; and provided further
that any L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.


 


 “Standby Letter of Credit Fee” has the
meaning provided in Section 2.09(b).


 


 “Statutory
Reserves” means for any Interest Period for any Borrowing of Eurodollar
Rate Loans in Dollars, the average maximum rate at which reserves (including
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the United
States Federal Reserve System in New York City with deposits exceeding one
billion Dollars against “Eurocurrency liabilities” (as such term is used in
Regulation D).  Borrowings of Eurodollar
Rate Loans shall be deemed to constitute Eurodollar liabilities and to be
subject to such reserve requirements without benefit of or credit for
proration, exceptions or offsets which may be available from time to time to
any Lender under Regulation D.


 


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


 


“Subject
Disposition” means any Disposition other than (a) Dispositions of
damaged, worn-out or obsolete Property that, in the Borrower’s reasonable
judgment, is no longer used or useful in the business of the Borrower or its
Subsidiaries; (b) Dispositions of inventory, services or other property 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 or (ii) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such
replacement equipment or property; (d) licenses, sublicenses, leases and
subleases not interfering in any material respect with the business of any
member of the Consolidated Group; (e) sales or discounts of accounts
receivable in connection with the compromise or collection thereof in the
ordinary course of business; (f) any Disposition at any time by (i) a
Credit Party to any other Credit Party, (ii) a Subsidiary that is not a
Credit Party to a Credit Party or (iii) a Subsidiary that is not a Credit
Party to another Subsidiary that is not a Credit Party; (g) 


 


33

















 


Specified Intercompany Transfers; (h) the sale of
Cash Equivalents; (i) an Excluded Sale and Leaseback Transaction; 

(j) Dispositions pursuant to a transaction contemplated by Section 8.12;
(k) Restricted Payments permitted by Section 8.06; (l) mergers
and consolidations permitted by Section 8.04; and (m) the granting of
Liens permitted pursuant to Section 8.01.


 


“Subordinated
Debt” means (x) as to the Borrower, any Funded Debt of the Borrower
that is expressly subordinated in right of payment to the prior payment of any
of the Loan Obligations of the Borrower and (y) as to any Guarantor, any Funded
Debt of such Guarantor that is expressly subordinated in right of payment to
the prior payment of any of the Loan Obligations of such Guarantor.


 


“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 provided, “Subsidiary” shall
refer to a Subsidiary of the Borrower.


 


“Support
Obligations” means, as to any Person, (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness payable 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, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness of the payment or performance of
such Indebtedness, (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 (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien).  The amount of any Support
Obligations 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 Support Obligation 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.


 


“Survey” means a survey of any
Mortgaged Property (and all improvements thereon) which is (a) a recent
ALTA survey by registered engineers or land surveyors and sufficient for the
Title Company to remove all standard survey exceptions from the title insurance
policy (or commitment) relating to such Mortgaged Property and issue the
endorsements of the type required by Section 5.02(d)(iii) or (b) otherwise
reasonably acceptable to the Collateral Agent.


 


 “Swap Contract” means any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity


 


34

















 


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.


 


“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 values
determined in accordance therewith, such termination values, and (b) for
any date prior to the date referenced in clause (a), the amounts
determined as the mark-to-market values 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).


 


“Swingline
Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.01(c).


 


“Swingline
Commitment” means, with respect to the Swingline Lender, the commitment of
the Swingline Lender to make Swingline Loans, and with respect to each Lender,
the commitment of such Lender to purchase participation interests in Swingline
Loans.


 


“Swingline
Lender” means Bank of America in its capacity as such, together with any
successor in such capacity.


 


“Swingline
Loan” has the meaning provided in Section 2.01(c).


 


“Swingline
Note” means the promissory note given to evidence the Swingline Loans, as
amended, restated, modified, supplemented, extended, renewed or replaced.  A form of Swingline Note is attached as Exhibit 2.13-2.


 


“Swingline
Sublimit” has the meaning provided in Section 2.01(c).


 


“Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement that
is considered borrowed money indebtedness for tax purposes but is classified as
an operating lease under GAAP.


 


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


 


“Term
Lenders” means, prior to the funding of the initial Term Loans on the
Funding Date, those Lenders with Term Loan Commitments, and after funding of
the Term Loans, those Lenders holding a portion of the Term Loans, together
with their successors and permitted assigns. 
The initial Term Lenders are set forth on Schedule 2.01.


 


35

















 


“Term
Loan Committed Amount” means, for each Term Lender, the amount of such
Lender’s Term Loan Commitment.  The
initial Term Loan Committed Amounts are set forth on Schedule 2.01.


 


“Term
Loan Commitment” means, for each Term Lender, the commitment of such Lender
to make a portion of the Term Loan hereunder; provided that, at any time
after funding of the Term Loans, determinations of “Required Lenders” and “Required
Term Lenders” shall be based on the outstanding principal amount of the Term
Loan.


 


“Term
Loan Commitment Percentage” means, for each Term Lender, a fraction (expressed
as a percentage carried to the ninth decimal place), the numerator of which is
the principal amount of such Lender’s Term Loan and the denominator of which is
the Outstanding Amount of the Term Loans. 
The initial Term Loan Commitment Percentages are set forth on Schedule
2.01.


 


“Term
Loan Termination Date” means the fifth anniversary of the Closing Date.


 


“Term
Loans” has the meaning provided in Section 2.01(d).


 


“Term
Note” means the promissory notes substantially in the form of Exhibit 2.13-4,
if any, given to evidence the Term Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced.


 


“Title Company” means any title
insurance company as shall be retained by the Borrower and reasonably
acceptable to the Administrative Agent.


 


“Title Policy” shall have the
meaning assigned to such term in Section 5.02(d)(ii).


 


 “Transactions” means the borrowing of
the Term Loans on the Funding Date, the consummation of the Spin-Off, the
issuance of the Senior Notes, the payment of the IAC Dividend, the distribution
by the Borrower of intercompany receivables, directly or indirectly, to IAC or
any of its subsidiaries, the other transactions contemplated by Section 8.12
and the payment of fees and expenses in connection with the foregoing.


 


“Treasury
Management Bank” has the meaning provided in the definition of Obligations.


 


“Treasury
Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds
transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, purchase cards, account
reconciliation and reporting and trade finance services.


 


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


 


“UCC”
means the Uniform Commercial Code in effect in any applicable jurisdiction from
time to time.


 


“United
States” or “U.S.” means the United States of America.


 


36

















 


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


 


“Wachovia”
means Wachovia Bank, National Association.


 


“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 payment 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 Subsidiary” means, with respect to any direct or indirect Subsidiary
of any Person, that one hundred percent (100%) of the Capital Stock with
ordinary voting power issued by such Subsidiary (other than directors’
qualifying shares and investments by foreign nationals mandated by applicable
Law) is beneficially owned, directly or indirectly, by such Person.


 


1.02        Interpretative
Provisions.


 


With
reference to this Credit Agreement and each other Credit Document, unless otherwise
specified herein or in such other Credit Document:


 


(a)           The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented
or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Credit Document),
(ii) any reference herein to any Person shall be construed to include such
Person’s successors and permitted assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Credit Document, shall be construed to refer to such Credit Document in
its entirety and not to any particular provision thereof, (iv) all references
in a Credit Document to “Articles,” “Sections,” “Exhibits”
and “Schedules” shall be construed to refer to articles and sections of,
and exhibits and schedules to, the Credit Document in which such references
appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


37

















 


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


 


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


 


1.03        Accounting Terms and
Provisions.


 


(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 Credit Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis in a manner consistent with
that used in preparing the audited financial statements referenced in Section 6.05,
except as otherwise specifically prescribed herein.


 


(b)           Notwithstanding any provision herein to
the contrary, determinations of (i) the Consolidated Total Leverage Ratio
for purposes of determining the applicable pricing level under the definition
of “Applicable Percentage,” (ii) compliance with covenants and conditions
and (iii) revenues for determining Material Subsidiaries and Immaterial
Subsidiaries shall be made on a Pro Forma Basis.  To the extent compliance with the covenants
in Section 8.10 is being calculated as of a date that is prior to
the first test date under Section 8.10 in order to determine the
permissibility of a transaction, the levels for the covenants as of the first
test date under Section 8.10 shall apply for such purpose.


 


(c)           If at any time any change in GAAP or in
the consistent application thereof would affect the computation of any
financial ratio or requirement set forth in any Credit Document, the Borrower
may, after giving written notice thereof to the Administrative Agent, determine
all such computations on such a basis; provided that if any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Credit Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided further that,
until so amended (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Credit Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.


 


(d)           Consolidation of Variable Interest
Entities.  All references herein to consolidated
financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a consolidated
basis or any similar reference shall, in each case, be deemed to include each
variable interest entity that the Borrower is required to consolidate pursuant
to FASB Interpretation No. 46 - Consolidation of Variable Interest
Entities: 


 


38





















 


an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.


 


1.04        Rounding.


 


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


 


1.05        Times of Day.


 


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


 


1.06        Exchange Rates;
Currency Equivalents.


 


(a)           The Administrative Agent or the
applicable L/C Issuer, as applicable, shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C
Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.
 Such Spot Rates shall become effective
as of such Revaluation Date and shall be the Spot Rates employed in converting
any amounts between the applicable currencies until the next Revaluation Date
to occur.  Except for purposes of
financial statements delivered hereunder or calculating covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Credit Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent or such L/C
Issuer, as applicable.


 


(b)           Wherever in this Credit Agreement in
connection with the issuance, amendment or extension of a Letter of Credit, an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
but such Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be.


 


1.07        Change of Currency.


 


(a)           Each obligation of the Borrower to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation).  If, in
relation to the currency of any such member state, the basis of accrual of interest
expressed in this Credit Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided
that if any Borrowing in the currency of such member state is outstanding


 


39





















 


immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.


 


(b)           Each provision of this Credit Agreement
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.


 


(c)           Each provision of this Credit Agreement
also shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions
or practices relating to the change in currency.


 


1.08        Letter of Credit
Amounts.


 


Unless
otherwise provided, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the Dollar Equivalent of the maximum face
amount available to be drawn of such Letter of Credit after giving effect to
all increases thereof contemplated by such Letter of Credit or the Issuer
Documents related thereto, whether or not such maximum face amount is in effect
at such time.


 


ARTICLE II



COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Commitments.


 


Subject
to the terms and conditions set forth herein:


 


(a)           Revolving Loans.


 


Following the Funding Date, each Revolving Lender
severally agrees to make revolving credit loans (the “Revolving Loans”)
in one or more Approved Currencies to the Borrower from time to time on any
Business Day prior to the Revolving Termination Date; provided that
after giving effect to any such Revolving Loan, (x) with respect to the
Revolving Lenders collectively, the Outstanding Amount of Revolving Obligations
shall not exceed ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (as such
amount may be increased pursuant to Section 2.01(f) or decreased in
accordance with the provisions hereof, the “Aggregate Revolving Committed
Amount”) (of which an amount not to exceed TWENTY FIVE MILLION DOLLARS ($25,000,000) may be
utilized for Revolving Loans in Alternative Currencies) and (y) with
respect to each Revolving Lender individually, such Lender’s Revolving
Commitment Percentage of Revolving Loans shall not exceed its respective
Revolving Committed Amount.  Revolving
Loans denominated in Dollars may consist of Base Rate Loans, Eurodollar Rate
Loans or a combination thereof, as the Borrower may request.  Revolving Loans denominated in an Alternative
Currency must consist of Eurodollar Rate Loans. 
Revolving Loans may be repaid and reborrowed in accordance with 


 


40














 


the provisions hereof.  Subject
to, and to the extent provided in, Article XII, Revolving Loans
denominated in an Alternative Currency that are required to be made by a
Participating Alternative Currency Lender pursuant to this Section 2.01(a) shall
instead be made by the Alternative Currency Fronting Lender and purchased and
settled by such Participating Alternative Currency Lender in accordance with Article XII.  Notwithstanding anything contained herein, no
Revolving Loans may be used to fund the IAC Dividend, the Spin-Off, any transaction
related to the Spin-Off or undertaken as contemplated by Section 8.12.


 


(b)           Letters of Credit.


 


(i)            Letters of Credit. 
On and after the Funding Date, (x) each  L/C Issuer, in reliance upon the
commitments of the Revolving Lenders set forth herein, severally agrees (A) to
issue Letters of Credit denominated in Dollars or in one or more Alternative
Currencies, for the account of the Borrower (or for the account of any member
of the Consolidated Group, but in such case the Borrower will remain obligated
to reimburse the L/C Issuer for any and all drawings under such Letter of
Credit, and the Borrower acknowledges that the issuance of Letters of Credit
for the account of members of the Consolidated Group inures to the benefit of
the Borrower, and the Borrower acknowledges that the Borrower’s business derives
substantial benefits from the business of such members of the Consolidated
Group) on any Business Day, (B) to amend or extend Letters of Credit
previously issued hereunder, and (C) to honor drawings under Letters of
Credit; and (y) Revolving Lenders severally agree to purchase from the L/C
Issuers a participation interest in Letters of Credit issued hereunder in an
amount equal to such Revolving Lender’s Revolving Commitment Percentage
thereof; provided that (A) the Outstanding Amount of L/C
Obligations shall not exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as
such amount may be decreased in accordance with the provisions hereof, the “L/C
Sublimit”), (B) with regard to the Revolving Lenders collectively, the
Outstanding Amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount and (C) with regard to each Revolving Lender
individually, such Revolving Lender’s Revolving Commitment Percentage of
Revolving Obligations shall not exceed its respective Revolving Committed
Amount.  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 obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.  Notwithstanding anything
contained herein, no Letters of Credit may be used to support the IAC Dividend,
the Spin-Off, any transaction contemplated by the Spin-Off or contemplated by Section 8.12.  All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Funding Date shall be subject to and governed by the
terms and conditions hereof.


 


(c)           Swingline Loans.  During the
Commitment Period, the Swingline Lender agrees, in reliance upon the
commitments of the other Lenders set forth herein, to make revolving credit
loans (the “Swingline Loans”) to the Borrower on any Business Day; provided
that (i) the Outstanding Amount of Swingline Loans shall not exceed
FIFTEEN 


 


41

















 


MILLION DOLLARS ($15,000,000) (as such amount may be
decreased in accordance with the provisions hereof, the “Swingline Sublimit”)
and (ii) with respect to the Revolving Lenders collectively, the
Outstanding Amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount.  Swingline
Loans shall be comprised solely of Base Rate Loans, and may be repaid and
reborrowed in accordance with the provisions hereof.  Immediately upon the making of a Swingline
Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swingline Lender a participation
interest in such Swingline Loan in an amount equal to such Lender’s Revolving
Commitment Percentage thereof.  Notwithstanding
anything contained herein, no Swingline Loans may be used to fund the IAC
Dividend, the Spin-Off, any transaction related to the Spin-Off or contemplated
by Section 8.12.


 


(d)           Term Loan.  Each of the
Term Lenders severally agrees to make its portion of the term loans (in the
amount of its respective Term Loan Committed Amount) to the Borrower on the
Funding Date in a single advance in an aggregate principal amount of ONE HUNDRED
FIFTY MILLION DOLLARS ($150,000,000) (the “Term Loans”).  The Term Loans may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may
request.  Amounts repaid on the Term
Loans may not be reborrowed.


 


(e)           Incremental Loan Facilities. 
Any time after the Funding Date, the Borrower may, upon written notice
to the Administrative Agent, establish additional credit facilities of the
Borrower (collectively, the “Incremental Loan Facilities”) by increasing
the Aggregate Revolving Commitments hereunder as provided in Section 2.01(f) (the
“Incremental Revolving Commitments”), or establishing new term loans
hereunder as provided in Section 2.01(g) (the “Incremental
Term Loans”); provided that:


 


(i)            the aggregate principal amount of loans and
commitments for all the Incremental Loan Facilities established after the
Funding Date will not exceed $75.0 million;


 


(ii)           no Default or Event of Default shall have occurred and
be continuing or shall result after giving effect to any such Incremental Loan
Facility;


 


(iii)          the conditions to the making of a Credit Extension
under Section 5.03 shall be satisfied; and


 


(iv)          the Borrower shall have delivered a certificate to the
Administrative Agent demonstrating that, after giving effect on a Pro Forma
Basis to the borrowings to be made pursuant to such Incremental Loan Facility,
as of the last day of the most recently ended fiscal quarter at the end of
which financial statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10.


 


42

















 


In connection with the
establishment of any Incremental Loan Facility, (A) neither of the Lead
Arrangers hereunder shall have any obligation to arrange for or assist in
arranging for any Incremental Loan Facility, (B) any Incremental Loan
Facility shall be subject to such conditions, including fee arrangements, as
may be provided in connection therewith and (C) none of the Lenders shall
have any obligation to provide commitments or loans for any Incremental Loan
Facility.


 


(f)            Establishment of Incremental Revolving Commitments. 
Subject to Section 2.01(e), the Borrower may establish
Incremental Revolving Commitments by increasing the Aggregate Revolving
Committed Amount hereunder, provided that:


 


(i)            any Person that is not a Revolving Lender that is
proposed to be a Lender under any such increased Aggregate Revolving Committed
Amount shall be reasonably acceptable to the Administrative Agent and any
Person that is proposed to provide any such increased Aggregate Revolving
Committed Amount (whether or not an existing Revolving Lender) shall be
reasonably acceptable to each L/C Issuer;


 


(ii)           Persons providing commitments for the Incremental
Revolving Commitments pursuant to this Section 2.01(f) will
provide a Revolving Lender Joinder Agreement;


 


(iii)          increases in the Aggregate Revolving Committed Amount
will be in a minimum principal amount of $10.0 million and integral multiples
of $5.0 million in excess thereof;


 


(iv)          if any Revolving Loans are outstanding at the time of
any such increase, either (x) the Borrower will prepay such Revolving
Loans on the date of effectiveness of the Incremental Revolving Commitments
(including payment of any break-funding amounts owing under Section 3.05)
or (y) each Lender with an Incremental Revolving Commitment shall purchase
at par interests in each Borrowing of the outstanding Revolving Loans under the
applicable Revolving Facility such that immediately after giving effect to such
purchases, each Borrowing thereunder shall be held by each Lender in accordance
with its Pro Rata Share of such Revolving Facility (and, in connection
therewith, the Borrower shall pay all amounts that would have been payable
pursuant to Section 3.05 had the Revolving Loans so purchased been
prepaid on such date).


 


Any Incremental Revolving Commitment established hereunder shall have
terms identical to the Revolving Commitments existing on the Closing Date, it
being understood that the Borrower and the Administrative Agent may make
(without the consent of or notice to any other party) any amendment to reflect
such increase in the Revolving Commitments.


 


(g)           Establishment of Incremental Term Loans. 
Subject to Section 2.01(e), the Borrower may, at any time,
establish additional term loan commitments, provided that:


 


43

















 


(i)            any Person that is not a Lender or Eligible Assignee
that is proposed to be a Lender shall be reasonably acceptable to the Administrative
Agent;


 


(ii)           Persons providing commitments for the Incremental Term
Loan pursuant to this Section 2.01(g) will provide an
Incremental Term Loan Joinder Agreement;


 


(iii)          additional commitments established for the Incremental
Term Loan will be in a minimum aggregate principal amount of $15.0 million and
integral multiples of $5.0 million in excess thereof; provided that
Incremental Term Loan Commitments shall not be established on more than three (3) separate
occasions; and


 


(iv)          the final maturity date of any Incremental Term Loan
shall be no earlier than the Term Loan Termination Date;


 


(v)           the Applicable Percentage (which for the purposes of
this Section 2.01(g) being deemed to include any similar
interest margin measure) for any proposed Incremental Term Loans shall be
determined by Borrower and the applicable Lenders; provided that in the
event that the Applicable Percentage for any proposed Incremental Term Loans is
greater than the Applicable Percentage for the Term Loans (other than such
Incremental Term Loans), then the Applicable Percentage for all Term Loans
(other than such Incremental Term Loans) shall be increased to the extent
necessary so that the Applicable Percentage for the Term Loans (other than such
Incremental Term Loans) is equal to the Applicable Percentage for the proposed
Incremental Term Loans; provided, further, that in determining
the Applicable Percentage applicable to the Term Loans (other than such
Incremental Term Loans) and the proposed Incremental Term Loans, original issue
discount (“OID”) or upfront fees (other
than underwriting fees paid only to Lenders under the Incremental Term Loans in
their capacity as such) (which upfront fees, exclusive of the underwriting fees
referred to above, shall be deemed to constitute like amounts of OID) payable
to the applicable Lenders of the Term Loans (other than such Incremental Term
Loans) or the proposed Incremental Term Loans in the primary syndication
thereof shall be included (with OID being equated to interest based on an
assumed four-year life to maturity);


 


(vi)          the Weighted Average Life to Maturity of any
Incremental Term Loan shall not be shorter than the Term Loans (without giving
effect to such Incremental Term Loans).


 


Any Incremental Term Loan established hereunder shall be on terms to be
determined by the Borrower and the Lenders thereunder (and the Borrower and the
Administrative Agent may, without the consent of any other Lender, enter into
an amendment to this Credit Agreement to appropriately include the Incremental
Term Loans hereunder including, without limitation, to provide that such
Incremental Term Loans shall share in mandatory prepayments on the same basis
as the Term Loans); provided that, to the extent that such terms and
documentation are not consistent with the Term Loans (except to 


 


44

















 


the extent permitted by clause (iv), (v) or
(vi) above), they shall be reasonably satisfactory to the
Administrative Agent; provided further that if any covenant,
term (except to the extent permitted by clause (iv), (v) or (vi) above),
event of default or remedy in any Incremental Term Loans is more favorable to
the lenders thereunder than the corresponding covenant, term, event of default
or remedy in the existing Term Loans, or such Incremental Term Loans contain
any covenant, term (except to the extent permitted by clause (iv), (v) or
(vi) above), event of default or remedy that is not in the existing
Credit Documents, the Credit Parties and the Administrative Agent and/or the
Collateral Agent shall, without the consent of or notice to any other party,
amend the documentation for such existing Credit Documents so that such
covenant, term, event of default and/or remedy is applicable to all Loans and
Commitments (or Term Loans and Term Loan Commitments, as applicable) hereunder
and/or to incorporate any such covenant, event of default and/or remedy that is
not in the existing Credit Documents.


 


2.02        Borrowings, Conversions
and Continuations.


 


(a)           Each Borrowing, each conversion of Loans
from one Type to the other, and each continuation of Eurodollar 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 noon (New York time) (or, with respect to amounts denominated in
Alternative Currency, 11:00 a.m. (London time)) (i) with respect to
Eurodollar Rate Loans, three (3) Business Days (or, in the case of
Revolving Loans denominated in Alternative Currency, four (4) Business
Days) prior to the requested date of, or (ii) with respect to Base Rate Loans,
on the requested date of, any Borrowing, conversion or continuation.  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 Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower.  Except as provided in Sections 2.03(c) and
2.04(b), each Borrowing, conversion or continuation shall be in a
principal amount of (i) with respect to Eurodollar Rate Loans (A) denominated
in Dollars, $1.0 million or a whole multiple of $1.0 million in excess thereof,
(B) denominated in Euros, €1.0 million or a whole multiple of €1.0 million
in excess thereof, (C) denominated in Sterling, £1.0 million or a whole
multiple of £1.0 million in excess thereof and (D) denominated in Canadian
Dollars, C$1.0 million or a whole multiple of C$1.0 million or (ii) with
respect to Base Rate Loans, $500,000 or a whole multiple of $100,000 in excess
thereof.  Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower’s request is
with respect to Revolving Loans or the Term Loans, (ii) whether such
request is for a Borrowing, conversion, or continuation, (iii) the requested
date of such Borrowing, conversion or continuation (which shall be a Business
Day), (iv) the principal amount of Loans to be borrowed, converted or
continued, (v) the Type of Loans to be borrowed, converted or continued, (vi) if
such Loans are Revolving Loans, the currency of such Loans (which shall be an Approved
Currency) and (vii) if applicable, the duration of the Interest Period
with respect thereto.  If the Borrower
fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation (other than with
respect to Revolving Loans denominated in an Alternative Currency), then the
applicable Loans shall be made as, or converted to, Base Rate Loans.  Any automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect
with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,


 


45





















 


conversion to, or continuation of Eurodollar Rate Loans in any Loan
Notice, but fails to specify an Interest Period, the Interest Period will be
deemed to be one (1) month.


 


(b)           Following receipt of a Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its Pro
Rata Share of the applicable 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
described in the preceding subsection. 
In the case of a Borrowing denominated in Dollars, each Lender shall
make the amount of its Loan available to the Administrative Agent in Dollars in
immediately available funds at the Administrative Agent’s Office not later than
2:00 p.m. (New York time) on the Business Day specified in the applicable
Loan Notice.  In the case of a Borrowing
denominated in an Alternative Currency, each Lender shall make the amount of
its Loan available to the Administrative Agent in the applicable Alternative
Currency in immediately available funds at the Administrative Agent’s Office
not later than 1:00 p.m. (London time) on the Business Day specified in
the applicable Loan Notice; provided that if, prior to the time any
Lender is required to fund its participation in a Loan denominated in an
Alternative Currency, such Lender notifies the Administrative Agent in writing
that it is unable to make such funds available in such Alternative Currency,
then such Lender shall so make the Dollar Equivalent of such funds available to
the Administrative Agent for the account of the Borrower in Dollars on or prior
to 2:00 p.m. (New York time) two Business Days prior to the date of such
borrowing (it being understood and agreed that upon receipt of such funds the
Administrative Agent shall so convert such amount into the Alternative Currency
Equivalent of such amount).  Upon
satisfaction of the applicable conditions set forth in Section 5.03
(and, if such Borrowing is the initial Credit Extension, Section 5.02),
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 Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to the Administrative Agent by the Borrower; provided,
however, that if on the date of such Borrowing there are 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, and second, to the
Borrower as provided above.


 


(c)           Except as otherwise provided herein,
without the consent of the Required Lenders, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan.  During the
existence of a Default or Event of Default, at the request of the Required
Lenders or the Administrative Agent, (i) no Loan denominated in Dollars
may be requested as, converted to or continued as a Eurodollar Rate Loan and (ii) any
outstanding Eurodollar Rate Loan denominated in Dollars shall be converted to a
Base Rate Loan on the last day of the Interest Period with respect thereto.


 


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


 


46





















 


(e)           After giving effect to all Borrowings,
all conversions of Revolving Loans from one Type to the other, and all
continuations of Revolving Loans as the same Type, there shall not be more than
ten (10) Interest Periods in effect with respect to the Revolving Loans
and five (5) Interest Periods with respect to the Term Loan.


 


2.03        Additional Provisions
with Respect to Letters of Credit.


 


(a)           Obligation to Issue or Amend.


 


(i)            No L/C Issuer shall issue any Letter of Credit if:


 


(A)          subject to Section 2.03(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
(12) months after the date of issuance or last extension, unless the
Administrative Agent and applicable L/C Issuer (if other than the
Administrative Agent) have approved such expiry date; or


 


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


 


(ii)           No L/C Issuer shall be under any obligation to issue
any Letter of Credit if:


 


(A)          any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or
any Law applicable to such L/C Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction
over such L/C Issuer shall prohibit, or request 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 that was not applicable on the Closing Date and that such L/C Issuer in
good faith deems material to it;


 


(B)           the issuance of such
Letter of Credit would violate any Law applicable to such L/C Issuer;


 


(C)           [Reserved];


 


(D)          such Letter of Credit is
to be denominated in a currency other than Dollars or an Alternative Currency;


 


(E)           except as otherwise
agreed by such L/C Issuer, such Letter of Credit contains provisions for
automatic reinstatement of the stated amount after any drawing thereunder; or


 


47

















 


(F)           a default of any
Revolving Lender’s obligations to fund under Section 2.03(c) exists
or any Revolving Lender is at such time a Defaulting Lender, unless such L/C
Issuer has entered into satisfactory arrangements with the Borrower or such
Revolving Lender to eliminate such L/C Issuer’s risk with respect to such
Revolving Lender.


 


(iii)          No L/C Issuer shall be under any 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.


 


(iv)          Each L/C Issuer shall act on behalf of the applicable
Revolving Credit Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and each L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article X
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 Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article X included such L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to such L/C Issuer.


 


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


 


(i)            Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the applicable
L/C Issuer (with a copy to the Administrative Agent) in the form of a L/C
Application, appropriately completed and signed by a Responsible Officer.  Such L/C Application must be received by the
applicable L/C Issuer and the Administrative Agent (A) not later than
12:00 noon (New York time) at least two (2) Business Days (or such shorter
time as the applicable L/C Issuer may agree) prior to the proposed issuance
date or date of amendment, as the case may be, of any Letter of Credit
denominated in Dollars and (B) not later than 12:00 noon (London time) at
least five (5) Business Days (or such shorter time as the applicable L/C Issuer
may agree) prior to the proposed issuance date or date of amendment, as the
case may be, of any Letter of Credit denominated in an Alternative Currency
(or, in each case, such later date and time as the applicable L/C Issuer and
the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be.  In the case of a request
for an initial issuance of a Letter of Credit, such L/C Application shall
specify in form and detail reasonably satisfactory to the applicable L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount and currency thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing 


 


48





















 


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


 


(ii)           Promptly after receipt of any L/C Application, the
applicable L/C Issuer will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of such L/C
Application from the Borrower and, if not, such L/C Issuer will provide the
Administrative Agent with a copy thereof. 
Unless the applicable L/C Issuer has received written notice from the
Administrative Agent, any Revolving Lender or any Credit Party, at least one (1) Business
Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Sections
5.02 (if issued on the Funding Date) and 5.03 shall not then be
satisfied, 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 Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with such L/C Issuer’s usual and customary
business practices.  Immediately upon the
issuance of each Letter of Credit, each Revolving Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
applicable L/C Issuer a risk participation in such Letter of Credit in an
amount equal to such Revolving Lender’s Revolving Commitment Percentage
thereof.


 


(iii)          If the Borrower so requests in any applicable L/C
Application, the applicable L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer
thereof 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 “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued (but in any event not later than 30 days
prior to the scheduled expiry date thereof). 
Unless otherwise directed by the applicable L/C Issuer, the Borrower
shall not be required to make a specific request to such L/C Issuer for any
such extension.  Once an Auto-Extension
Letter of Credit has been issued, the Revolving Lenders shall be deemed to have
authorized (but may not require) such L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the L/C
Expiration Date; provided, however, that such L/C Issuer shall
not permit any such extension if (A) such L/C Issuer has determined that
it would not be permitted or would have no obligation at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of Section 2.03(a) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is five (5) Business Days


 


49





















 


before the Non-Extension
Notice Date from the Administrative Agent or the Borrower that one or more of
the applicable conditions specified in Section 5.03 is not then
satisfied, and in each case directing such L/C Issuer not to permit such extension.


 


(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 applicable 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 any drawing under any Letter of Credit, the
applicable L/C Issuer shall notify the Borrower and the Administrative Agent
thereof.  In the case of a Letter of
Credit denominated in Dollars, the Borrower shall reimburse the applicable L/C
Issuer in Dollars. In the case of a Letter of Credit denominated in an
Alternative Currency, the Borrower shall reimburse the applicable L/C Issuer in
such Alternative Currency, unless (A) such L/C Issuer (at its option)
shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the absence of any such requirement for reimbursement
in Dollars, the Borrower shall have notified such L/C Issuer promptly following
receipt of the notice of drawing that the Borrower will reimburse such L/C
Issuer in Dollars.  In the case of any
such reimbursement in Dollars of a drawing as of the applicable Revaluation
Date under a Letter of Credit denominated in an Alternative Currency, the
applicable L/C Issuer shall notify the Borrower of the Dollar Equivalent of the
amount of the drawing promptly following the determination thereof.  Not later than 12:00 noon (New York time) on
the date of any payment by an L/C Issuer under a Letter of Credit to be reimbursed
in Dollars, and (y) the Applicable Time on the date of any payment by such
L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency
(each such date, an “Honor Date”), the Borrower shall reimburse such L/C
Issuer through the Administrative Agent in Dollars or in the applicable
Alternative Currency, as the case may be, in an amount equal to the amount of
such drawing; provided, that the Borrower, and the applicable L/C Issuer
may, each in their discretion, with the consent of the Administrative Agent and
so long as such arrangements do not adversely affect the rights of any Lender
in any material respect, enter into Letter of Credit cash collateral prefunding
arrangements acceptable to them for the purpose of reimbursing Letter of Credit
draws.  If the Borrower fails to so
reimburse such L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Lender of the Honor Date, the amount and denomination of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Revolving Lender’s Revolving Commitment Percentage thereof.  In such event, the Borrower shall be deemed
to have requested (x) with respect to amounts denominated in Dollars, a Borrowing
in Dollars of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02(a) for the principal amount of Base
Rate Loans (but subject to the amount of the unutilized portion of the
Aggregate Revolving Committed Amount (other than with respect to Alternative
Currencies)) and the conditions set forth in Section 5.03 and (y) with
respect to amounts denominated in an Alternative Currency, a Borrowing of
Eurodollar Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum 


 


50


















 


and multiples specified
in Section 2.02(a) for the principal amount of Eurodollar Rate
Loans (but subject to the amount of the unutilized portion of the Aggregate
Revolving Committed Amount with respect to Alternative Currencies) and the
conditions set forth in Section 5.03.  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 Revolving Lender shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the applicable L/C Issuer, in Dollars,
Euros, Sterling or Canadian Dollars, as the case may be, at the Administrative
Agent’s Office for payments in such currency in an amount equal to its
Revolving Commitment Percentage of the Unreimbursed Amount not later than 2:00 p.m.
(New York time) on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Lender that so makes funds available shall be deemed to have
made a Revolving Loan that is, with respect to amounts denominated in Dollars,
a Base Rate Loan and with respect to amounts denominated in an Alternative
Currency, a Eurodollar Rate Loan, to the Borrower in the Dollar Equivalent of
such amount; provided, that if, prior to the time any Lender is required
to fund its participation in a Letter of Credit denominated in an Alternative
Currency, such Lender notifies the Administrative Agent in writing that it is unable
to make such funds available in such Alternative Currency, then such Lender
shall make the Dollar Equivalent of such funds available to the Administrative
Agent for the account of the applicable L/C Issuer in Dollars not later than
2:00 p.m. (New York time) two Business Days prior to the date such funds
are required from other Lenders funding their participations in Alternative
Currency (it being understood and agreed that upon receipt of such funds the
Administrative Agent shall so convert such amount into the Alternative Currency
Equivalent of such amount).  The
Administrative Agent shall remit the funds so received to the applicable L/C
Issuer in Dollars, or if requested by the applicable L/C Issuer, the equivalent
amount thereof in an Alternative Currency as determined by the Administrative
Agent at such time on the basis of the Spot Rate (determined as of such funding
date) for the purchase of such Alternative Currency with Dollars.


 


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


 


(iv)    Until a Revolving Lender funds its Revolving
Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender’s Revolving 


 


51

















 


Commitment Percentage of
such amount shall be solely for the account of such L/C Issuer.


 


(v)     Each Revolving Lender’s obligation to make
Revolving Loans or L/C Advances to reimburse the applicable 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 that such Revolving Lender may have against such L/C Issuer, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default or Event of Default, (C) with respect to
funding participations in L/C Borrowings, non-compliance with the conditions
set forth in Section 5.03, or (D) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided that
such L/C Issuer shall have complied with the provisions of Section 2.03(b)(ii).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse such
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 Lender fails to make
available to the Administrative Agent for the account of the applicable L/C
Issuer any amount required to be paid by such Revolving 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 Revolving 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 greater of the
Federal Funds Rate and a rate determined by the applicable L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by such L/C
Issuer in connection with the foregoing. 
If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Loan included in the relevant
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case
may be.  A certificate of such L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.


 


(d)                                                   Repayment of Participations.


 


(i)      At any time after an L/C Issuer has made a
payment under any Letter of Credit and has received from any Revolving Lender
such Revolving Lender’s L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent receives for the
account of 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 Revolving Lender its
Revolving Commitment Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Revolving
Lender’s L/C Advance was outstanding) in the same type of funds as those
received by the Administrative Agent.


 


52

















 


(ii)     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 11.05
(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 Revolving Commitment Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the applicable Overnight Rate from time to time in
effect.  The obligations of the Revolving
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Credit Agreement.


 


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


 


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


 


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


 


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


 


(iv)    any payment by such 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
such 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 adverse change in the relevant exchange
rates or in the availability of the relevant Alternative Currency to the
Borrower or any Subsidiary or in the relevant currency markets generally; 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, the Borrower or any Subsidiary.


 


53

















 


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


 


(f)            Role
of each L/C Issuer in such Capacity. 
Each Revolving Lender and the Borrower agrees that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall 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, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
any L/C Issuer shall be liable to any Revolving Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Required Revolving Lenders; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to such
Borrower’s use of any Letter of Credit; provided, however, that
this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as the Borrower may have against the
beneficiary or transferee at law or under any other agreement.  None of the L/C Issuers, the Administrative
Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of any L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (vi) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower shall have a claim against an L/C Issuer, and
such L/C Issuer shall be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower that are determined by a court of competent jurisdiction
to have been caused by such L/C Issuer’s willful misconduct or gross negligence
or such L/C Issuer’s willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, 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, that may prove to be
invalid or ineffective for any reason.


 


(g)           Cash
Collateral.  Upon the request of the
Administrative Agent, (i) if an L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any Letter of
Credit may for any reason remain outstanding and partially or wholly undrawn
the Borrower shall immediately 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 L/C Borrowing or the L/C Expiration Date, as
the case may be).  The Administrative
Agent may, at any time and from time to time after the initial deposit of cash
collateral, request that additional cash collateral be provided in order to
protect against the results of exchange rate fluctuations.  For purposes hereof, 


 


54

















 


“Cash Collateralize” means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the applicable L/C Issuer and
the Lenders, as collateral for such L/C Obligations, cash or deposit account
balances pursuant to customary documentation in form and substance reasonably
satisfactory to the Administrative Agent and such L/C Issuer (which documents
are hereby consented to by the Lenders). 
Derivatives of such term have corresponding meanings.  Cash collateral shall be maintained in
blocked, interest bearing deposit accounts or money market fund accounts at the
Administrative Agent.


 


(h)           Applicability
of ISP.  Unless otherwise expressly
agreed by an L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to
an Existing Letter of Credit), the rules of the ISP shall apply to
each Letter of Credit.


 


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


 


(j)            Letter
of Credit Fees.  The Borrower shall
pay Letter of Credit Fees as set forth in Section 2.09(b).


 


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


 


2.04                        Additional
Provisions with Respect to Swingline Loans.


 


(a)           Borrowing
Procedures.  Each Swingline Borrowing
shall be made upon the Borrower’s irrevocable notice to the Swingline Lender
and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swingline Lender and the Administrative Agent not later than 2:00 p.m.
(New York time) on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swingline Lender and the Administrative Agent of a
written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Promptly after
receipt by the Swingline Lender of any telephonic Loan Notice, the Swingline
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Loan Notice and, if not,
the Swingline Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof.  Unless
the Swingline Lender has received notice (by telephone or in writing) from the
Administrative Agent prior to 3:00 p.m. (New York time) on the date of the
proposed Swingline Borrowing (A) directing the Swingline Lender not to
make such Swingline Loan as a result of the limitations set forth in this Article II,
or (B) that one or more of the applicable conditions specified in Section 5.02
(if on the Funding Date) and Section 5.03 is not then satisfied,
then, subject to the terms and conditions hereof, the Swingline Lender will,
not later than 4:00 p.m. (New York time) on the borrowing date specified
in such Loan Notice, make the amount of its Swingline Loan available to the 


 


55

















 


Borrower at its office by crediting the account of the Borrower on the
books of the Swingline Lender in immediately available funds.


 


(b)                                                    Refinancing.


 


(i)      The Swingline Lender at any time in its
sole and absolute discretion may request that each Revolving Lender make a
Revolving Loan that is a Base Rate Loan in an amount equal to such Revolving
Lender’s Revolving Commitment Percentage of Swingline Loans then
outstanding.  Such request shall be made
in writing (which written request shall be deemed to be a Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments or the conditions set forth in Section 5.03.  The Swingline Lender shall furnish the
Borrower with a copy of the applicable Loan Notice promptly after delivering
such notice to the Administrative Agent. 
Each Revolving Lender shall make an amount equal to its Revolving Commitment
Percentage of the amount specified in such Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swingline Lender at the Administrative Agent’s Office not later than 2:00 p.m.
(New York time) on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(b)(ii), each Revolving Lender that so makes funds
available shall be deemed to have made a Revolving Loan that is a Base Rate
Loan to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swingline Lender.


 


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


 


(iii)    If any Revolving Lender fails to make
available to the Administrative Agent for the account of the Swingline Lender
any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.04(b) by the time
specified in Section 2.04(b)(i), the Swingline Lender shall be
entitled to recover from such Revolving 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 Swingline Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swingline
Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Swingline Lender in connection with the foregoing.  If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan
included in the relevant Borrowing or funded participation in the relevant
Swingline Loan, as the case may be.  A
certificate of the Swingline Lender submitted to any Revolving Lender 


 


56

















 


(through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.


 


(iv)    Each Revolving Lender’s obligation to make
Revolving Loans or to purchase and fund risk participations in Swingline Loans
pursuant to this Section 2.04(b) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Revolving
Lender may have against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default
or Event of Default, (C) non-compliance with the conditions set forth in Section 5.03,
or (D) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that Swingline Lender has complied with
the provisions of Section 2.04(a). 
No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swingline Loans,
together with interest as provided herein.


 


(c)                                                     Repayment of Participations.


 


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


 


(ii)     If any payment received by the Swingline
Lender in respect of principal or interest on any Swingline Loan is required to
be returned by the Swingline Lender under any of the circumstances described in
Section 11.05 (including pursuant to any settlement entered into by
the Swingline Lender in its discretion), each Revolving Lender shall pay to the
Swingline Lender its Revolving Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate.  The Administrative Agent
will make such demand upon the request of the Swingline Lender.  The obligations of the Revolving Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Credit Agreement.


 


(d)                                                    Interest for Account of Swingline Lender. 
The Swingline Lender shall be responsible for invoicing the Borrower for
interest on the Swingline Loans.  Until
each Revolving Lender funds its Revolving Loan or risk participation pursuant
to this Section 2.04 to refinance such Revolving Lender’s Revolving
Commitment Percentage of any Swingline Loan, interest in respect thereof shall
be solely for the account of the Swingline Lender.


 


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


 


57

















 


2.05                        Repayment
of Loans.


 


(a)           Revolving
Loans.  The Borrower shall repay to
the Revolving Lenders the Outstanding Amount of Revolving Loans on the
Revolving Termination Date.


 


(b)           Swingline
Loans.  The Borrower shall repay to
the Swingline Lender the Outstanding Amount of the Swingline Loans on the
Revolving Termination Date.


 


(c)           Term
Loan.  The Borrower shall repay the
aggregate principal amount of the Term Loans (shown as a percentage of the
original aggregate principal amount of the Term Loans) in quarterly
installments on the dates set forth below as follows:


 


	
  Date

  	
   

  	
  Principal

  Amortization Payment

  (shown as a Percentage

  of

  Original Principal

  Amount)

  	
   

  	
  Date

  	
   

  	
  Principal

  Amortization

  Payment

  (shown as a

  Percentage of

  Original Principal

  Amount)

  	
   

  
	
  March 31,
  2009

  	
   

  	
  2.5%

  	
   

  	
  June 30,
  2011

  	
   

  	
  5.0%

  	
   

  
	
  June 30,
  2009

  	
   

  	
  2.5%

  	
   

  	
  September 30,
  2011

  	
   

  	
  5.0%

  	
   

  
	
  September 30,
  2009

  	
   

  	
  2.5%

  	
   

  	
  December 31,
  2011

  	
   

  	
  5.0%

  	
   

  
	
  December 31,
  2009

  	
   

  	
  2.5%

  	
   

  	
  March 31,
  2012

  	
   

  	
  5.0%

  	
   

  
	
  March 31,
  2010

  	
   

  	
  3.75%

  	
   

  	
  June 30,
  2012

  	
   

  	
  5.0%

  	
   

  
	
  June 30,
  2010

  	
   

  	
  3.75%

  	
   

  	
  September 30,
  2012

  	
   

  	
  5.0%

  	
   

  
	
  September 30,
  2010

  	
   

  	
  3.75%

  	
   

  	
  December 31,
  2012

  	
   

  	
  5.0%

  	
   

  
	
  December 31,
  2010

  	
   

  	
  3.75%

  	
   

  	
  March 31,
  2013

  	
   

  	
  11.66%

  	
   

  
	
  March 31,
  2011

  	
   

  	
  5.0%

  	
   

  	
  June 30,
  2013

  	
   

  	
  11.66%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Term Loan

  	
   

  	
  11.67%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Termination Date

  	
   

  	
   

  	
   

  



 


2.06                        Prepayments.


 


(a)                                  Voluntary Prepayments. 
The Loans may be repaid in whole or in part without premium or penalty
(except, in the case of Loans other than Base Rate Loans, amounts payable
pursuant to Section 3.05); provided that:


 


(i)            in the case of Loans other than
Swingline Loans, (A) notice thereof must be received by 1:00 p.m.
(New York time) by the Administrative Agent at least three (3) Business
Days (or, in the case of Revolving Loans denominated in Alternative Currency,
at least four (4) Business Days) prior to the date of prepayment, in the
case of Eurodollar Rate Loans, and one (1) Business Day prior to the date
of prepayment, in the case of Base Rate Loans, (B) any such prepayment
shall be a minimum principal amount of (w) $1.0 million and integral
multiples of $1.0 million in excess thereof, in the case of Eurodollar Rate
Loans denominated in Dollars, (x) €1.0 million and integral multiples of
€1.0 million in excess thereof, in the case of Eurodollar Rate Loans
denominated in Euros, (y) £1.0 million and integral multiples of £1.0
million in excess thereof, in the case of Eurodollar 


 


58

















 


Rate Loans denominated in
Sterling and (z) C$1.0 million and integral multiples of C$1.0 million in
excess thereof, in the case of Eurodollar Rate Loans denominated in Canadian
Dollars and $500,000 and integral multiples of $100,000 in excess thereof, in
the case of Base Rate Loans, or, in each case, the entire remaining principal
amount thereof, if less; and


 


(ii)           in the case of Swingline Loans, (A) notice
thereof must be received by the Swingline Lender by 2:00 p.m. (New York
time) on the date of prepayment (with a copy to the Administrative Agent), and (B) any
such prepayment shall be in the same minimum principal amounts as for advances
thereof (or any lesser amount that may be acceptable to the Swingline Lender).


 


Each such notice of voluntary prepayment hereunder shall be irrevocable
and shall specify the date and amount of prepayment and the Loans and Types of
Loans that are being prepaid and, if Eurodollar Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. 
The Administrative Agent will give prompt notice to the applicable
Lenders of any prepayment on the Loans and the Lender’s interest therein.  Prepayments of Eurodollar Rate Loans
hereunder shall be accompanied by accrued interest on the amount prepaid and
breakage or other amounts due, if any, under Section 3.05.  Notwithstanding the foregoing, a notice of
voluntary prepayment delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.


 


(b)                                 Mandatory Prepayments. 
Subject in each case to Section 2.06(c):


 


(i)        Revolving Commitments.


 


(A)                              If at any time (1) the Outstanding
Amount of Revolving Obligations shall exceed the Aggregate Revolving Committed
Amount, (2) the Outstanding Amount of L/C Obligations shall exceed the L/C
Sublimit, or (3) the Outstanding Amount of Swingline Loans shall exceed
the Swingline Sublimit, immediate prepayment will be made on or in respect of
the Revolving Obligations in an amount equal to the difference; provided,
however, that L/C Obligations will not be Cash Collateralized hereunder
until the Revolving Loans and Swingline Loans have been paid in full.


 


(B)                                If the Administrative Agent notifies the
Borrower at any time that the Outstanding Amount of all L/C Obligations
denominated in Alternative Currencies at such time exceeds an amount equal to
105% of the L/C Sublimit then in effect, then, within two (2) Business
Days after receipt of such notice, the Borrower shall Cash Collateralize the
L/C Obligations denominated in Alternative Currencies in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an
amount not to exceed 100% of the L/C Sublimit then in effect.  The Administrative Agent may, at any time and
from time to time after the initial deposit of such cash collateral, request
that additional cash collateral be provided in order to protect against the
results of further exchange rate fluctuations.


 


(ii)       Subject Dispositions and Involuntary
Dispositions.  On or before the applicable
date set forth in the next sentence, prepayment will be made on the Loan Obligations



 


59

















 


in an amount equal to one
hundred percent (100%) of the Net Cash Proceeds received from any Subject
Disposition or Involuntary Disposition by any member of the Consolidated Group
occurring after the Closing Date, but solely to the extent (x) the Net
Cash Proceeds received in such Subject Disposition (or series of related
Subject Dispositions) or Involuntary Disposition (or series of related
Involuntary Dispositions) exceed $5.0 million, (y) the Net Cash Proceeds
received in all Subject Dispositions or Involuntary Dispositions effected
during the fiscal year in which the applicable Subject Disposition or
Involuntary Disposition takes place exceeds $10.0 million and (z) such Net
Cash Proceeds are not used to acquire, maintain, develop, construct, improve, upgrade
or repair Property (other than inventory, accounts receivable, cash or Cash
Equivalents) useful in the business of the Consolidated Group or to make
investments in Permitted Acquisitions that are otherwise permitted hereunder
within twelve (12) months of the date of such Subject Disposition or
Involuntary Disposition; provided that such a reinvestment shall not be
permitted if an Event of Default shall have occurred and be continuing at the
time the Borrower commits to make such reinvestment or, if no such commitment
is made, the time the reinvestment is actually made, and in either such
circumstance such Net Cash Proceeds shall be used to make prepayments on the
Loans.  Any such prepayment from any Net Cash Proceeds
required by the previous sentence shall be made (x) in the case of a Major
Disposition in respect of which the notice referred to in Section 7.02(g) has
not been delivered on or before the fifteenth (15th) Business Day following the
receipt of the Net Cash Proceeds from such Major Disposition or to the extent
such notice does not indicate reinvestment is intended with the Net Cash
Proceeds of such Major Disposition, on or before the twenty-fifth (25th) Business
Day following receipt of such Net Cash Proceeds and (y) in any other case,
promptly after the Borrower determines that it will not reinvest such Net Cash
Proceeds in accordance with the terms and limitations of the previous sentence,
but in no event later than 366 days following the receipt of such Net Cash
Proceeds.  To the extent that the
Borrower has determined in good faith that repatriation to the United States of
any or all the Net Cash Proceeds of any Subject Disposition or Involuntary
Disposition by a Foreign Subsidiary would have a material adverse tax consequence
to the Borrower and its Subsidiaries, the Net Cash Proceeds so affected may be
retained by such Foreign Subsidiary, provided that on or before the date
on which any such Net Cash Proceeds would otherwise have been required to be
applied to reinvestments or prepayments pursuant to the foregoing provisions of
this Section 2.06(b)(ii), the Borrower applies an amount equal to
such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash
Proceeds had been received by the Borrower rather than such Foreign Subsidiary,
less the amount of additional taxes (to the extent such taxes are not already
deducted pursuant to the definition of Net Cash Proceeds) that would have been
payable or reserved against if such Net Cash Proceeds had been repatriated to
the United States.


 


(iii)    Indebtedness.  Prepayment will be made on the Loan
Obligations in an amount equal to one hundred percent (100%) of the Net Cash
Proceeds received from any incurrence or issuance of Indebtedness after the
Closing Date (other than Indebtedness expressly permitted to be incurred or
issued pursuant to Section 8.03). 
Any prepayment in respect of such Indebtedness hereunder will be payable
on the Business Day following receipt by the Borrower or other members of the
Consolidated Group of the Net Cash Proceeds therefrom.


 


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(iv)          Consolidated Excess Cash Flow.  If for any fiscal year of the Borrower ending
after December 31, 2008 there shall be Consolidated Excess Cash Flow,
then, on a date that is no later five Business Days following the date that
financial statements for such fiscal year are required to be delivered pursuant
to Section 7.01(a), the Loan Obligations shall be prepaid by an
amount equal to the ECF Application Amount for such fiscal year.


 


(v)           Spin-Off.  If the Spin-Off and the other material
transactions that, pursuant to the terms of the Separation Agreement, are to
occur prior to or substantially concurrently with the Spin-Off shall not have
been consummated on or prior to the fifth Business Day following the Funding
Date, then on such fifth Business Day (x) all of the Loan Obligations
shall be required to be prepaid, (y) the Revolving Commitment of each Revolving
Lender shall be reduced to zero and (z) the Borrower shall Cash
Collateralize the then Outstanding Amount of all L/C Obligations.


 


(vi)          Eurodollar Prepayment Account.  If the Borrower is required to make a
mandatory prepayment of Eurodollar Rate Loans under this Section 2.06(b),
so long as no Event of Default exists, the Borrower shall have the right, in
lieu of making such prepayment in full, to deposit an amount equal to such
mandatory prepayment with the Administrative Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the Administrative
Agent) by and in the sole dominion and control of the Administrative
Agent.  Any amounts so deposited shall be
held by the Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the applicable
Eurodollar Rate Loans at the earliest of (x) the end of the current
Interest Periods applicable thereto, (y) three months following the date
of such deposit and (z) at the election of the Administrative Agent, upon
the occurrence of an Event of Default. 
At the request of the Borrower, amounts so deposited shall be invested
by the Administrative Agent in Cash Equivalents maturing on or prior to the
date or dates on which it is anticipated that such amounts will be applied to
prepay such Eurodollar Rate Loans; any interest earned on such Cash Equivalents
will be for the account of the Borrower and the Borrower will deposit with the
Administrative Agent the amount of any loss on any such Cash Equivalents to the
extent necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.


 


(c)                                  Application. 
Within each Loan, prepayments will be applied first to Base Rate Loans,
then to Eurodollar Rate Loans in direct order of Interest Period
maturities.  In addition:


 


(i)            Voluntary Prepayments.  Prepayments of the Term Loans pursuant to Section 2.06(a) shall
be applied, first, in direct order of maturity in respect of the principal
amortization payments due on such Term Loans under Section 2.05(c) within
the twelve (12) months following such prepayment, and second, pro rata to the
remaining principal amortization installments under Section 2.05(c) on
the Term Loans, as the case may be. 
Voluntary prepayments on the Loan Obligations will be paid by the
Administrative Agent to the Lenders ratably in accordance with their respective
interests therein.


 


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(ii)                                  Mandatory Prepayments. 
Mandatory prepayments on the Loan Obligations will be paid by the
Administrative Agent to the Lenders ratably in accordance with their respective
interests therein; provided that:


 


(A)          Mandatory prepayments in respect of
the Revolving Commitments under subsection (b)(i)(A) above shall be
applied to the respective Revolving Obligations as appropriate.


 


(B)           Mandatory prepayments in respect of
Subject Dispositions and Involuntary Dispositions under subsection (b)(ii) above,
Indebtedness under subsection (b)(iii) and Consolidated Excess Cash
Flow under subsection (b)(iv) above shall be applied (i) to
the Term Loans, first, in direct order of maturity in respect of the principal
amortization payments under Section 2.05(c) due on the Term
Loans within the twelve (12) months following such prepayment, and second, pro
rata to the remaining principal amortization installments under Section 2.05(c) on
the Term Loans, until paid in full, then (ii) to the Revolving Obligations
(without permanent reduction of the Revolving Commitments); provided that if
any events in subsection (b)(ii) or subsection (b)(iii) occur prior
to the Funding Date and on or following the Closing Date, then the amount that
would have otherwise been required to be used to make prepayments of the Loans
shall be applied first, to reduce the Term Loan Commitments and second to
reduce the Revolving Commitments.


 


2.07                        Termination
or Reduction of Commitments.


 


Voluntary
Reductions.  The Commitments hereunder may be permanently
reduced in whole or in part by notice from the Borrower to the Administrative
Agent; provided that (i) any such notice thereof must be received
by 1:00 p.m. (New York time) at least five (5) Business Days prior to
the date of reduction or termination and any such reduction or terminations
shall be in a minimum amount of $1.0 million and integral multiples of $1.0
million in excess thereof; and (ii) the Commitments may not be reduced to
an amount less than the Outstanding Amount of Loan Obligations then outstanding
thereunder.  The Administrative Agent
will give prompt notice to the Lenders of any such reduction in
Commitments.  Any reduction of any
Commitments shall be applied to the Commitment of each applicable Lender
according to its Pro Rata Share.  All
commitment or other fees accrued with respect to any Commitment through the
effective date of any termination thereof shall be paid on the effective date
of such termination. A notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.


 


2.08                        Interest.


 


(a)           Subject
to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Adjusted Eurodollar Rate
for such Interest Period plus the Applicable Percentage; (ii) each
Loan that is a Base Rate Loan shall bear interest on the outstanding principal 


 


62

















 


amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Percentage; and (iii) each
Swingline 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 Percentage.


 


(b)           If any amount payable by the Borrower
under any Credit Document is not paid when due and an Event of Default has
occurred and is continuing under Section 9.01(a), (f) or
(h), whether at stated maturity, by acceleration or otherwise, then such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law.


 


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


 


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


 


2.09                        Fees.


 


(a)           Facility
Fee; Commitment Fee.  The Borrower
shall pay to the Administrative Agent for the account of each (x) Revolving
Lender in accordance with its Revolving Commitment Percentage thereof, a
facility fee (the “Facility Fee”) equal to 0.50% per annum of the actual
daily amount of the Aggregate Revolving Committed Amount and (y) Term
Lender in accordance with its Term Loan Commitment Percentage thereof, a
commitment fee (the “Commitment Fee”) equal to 0.50% per annum of the
actual daily amount of the Aggregate Term Loan Committed Amount during the
period between the Closing Date and the Funding Date; provided that, if
the Borrower continues to have any outstanding Revolving Obligations after the
termination of the Commitment Period, then, with respect to each Revolving
Lender to whom such Revolving Obligations are then owed, such facility fee
shall continue to accrue in accordance with such Lender’s Revolving Committed
Percentage thereof of the actual daily amount of the Aggregate Revolving
Committed Amount (without giving effect to the expiration of such Commitment
Period) from and including the date the Commitment Period terminates to but
excluding the date on which such Revolving Obligations are no longer
outstanding.  Notwithstanding the foregoing,
if the Funding Date occurs 60 days or more after the Closing Date, the
Commitment Fee and Facility Fee for the period from and including the Closing
Date to but excluding the Funding Date shall be increased to 0.75% per
annum.  The Commitment Fees and Facility
Fees shall accrue at all times during the applicable Commitment Period (and,
following the expiration of the Commitment Period, the Facility Fee shall
continue to accrue to the extent set forth above), including at any time during
which one or more of the conditions in Article V is not met, and
shall be due and payable quarterly in arrears on the tenth (10th) day of each
January, April, July and October (for the Commitment Fee and Facility
Fee accrued during the previous calendar quarter), commencing with the first
such date to occur after the Closing Date, and on the Revolving Termination
Date.  The Commitment Fee and Facility
Fee shall be calculated quarterly in arrears.


 


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(b)                                 Letter of Credit Fees.


 


(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent, for the account of each Revolving Lender in accordance with its
Revolving Commitment Percentage, a Letter of Credit fee, in Dollars, (x) for
each standby Letter of Credit, an amount equal to the Applicable Percentage for
Revolving Loans that are Eurodollar Loans multiplied by the daily maximum undrawn
Outstanding Amount under such standby Letter of Credit (the “Standby Letter
of Credit Fee”), and (y)  for each commercial Letter of Credit, an
amount equal to the Applicable Percentage for Revolving Loans that are Eurodollar
Loans multiplied by fifty percent (50%), multiplied by the daily maximum amount
available to be drawn under such commercial Letter of Credit (the “Commercial
Letter of Credit Fee” and, together with the Standby Letter of Credit Fee,
the “Letter of Credit Fees”).  For
purposes of computing the daily undrawn Outstanding Amount under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.08.  The
Letter of Credit Fees shall be computed on a quarterly basis in arrears, and
shall be due and payable on the tenth (10th) day of each January, April, July and
October (for the Letter of Credit Fees accrued during the previous
calendar quarter), commencing with the first such date to occur after the
issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on
demand.  If there is any change in the
Applicable Percentage during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable
Percentage separately for each period during such quarter that such Applicable
Percentage was in effect. 
Notwithstanding anything to the contrary contained herein, while any
Event of Default has occurred and is continuing under Section 9.01(a),
(f) or (h), all Letter of Credit Fees shall accrue at the Default
Rate.


 


(ii)           Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuers. 
The Borrower shall pay directly to the applicable L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit (other than
commercial Letters of Credit), 0.125% of the daily undrawn Outstanding Amount
under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the tenth (10th) day of each January, April, July and October (for
fronting fees accrued during the previous calendar quarter or portion thereof,
in the case of the first payment), commencing with the first such date to occur
after the issuance of such Letter of Credit, on the L/C Expiration Date and
thereafter on demand.  For purposes of
computing the daily undrawn Outstanding Amount under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.08.  In addition, the Borrower shall pay directly
to each L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
such L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


(c)                                  Other Fees.  The Borrower
shall pay to Bank of America, MLBUSA, Barclays Bank PLC, Barclays Capital, the
investment banking division of Barclays Bank PLC, JPMorgan Chase Bank, N.A.,
Morgan Stanley Senior Funding, Inc., Wachovia Bank and Wachovia Capital
Markets, LLC, for their own respective accounts, fees in the amounts and at the
times specified 


 


64

















 


in the Fee Letter.  Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 


The
Borrower shall pay to the Lenders 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.


 


2.10                        Computation
of Interest and Fees.


 


All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s prime rate shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year), or, in the case of interest in respect of
Eurodollar Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, in accordance with such market
practice.  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 2.11(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.


 


2.11                        Payments
Generally; Administrative Agent’s Clawback.


 


(a)           General.  All payments to be made by any Credit Party
hereunder shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.  All payments
of principal and interest on any Loan shall be payable in the same currency as
such Loan is denominated.  All payments
of fees pursuant to Section 2.09 shall be payable in Dollars.  All payments in respect of Unreimbursed
Amounts shall be payable in the currency provided in Section 2.03.  All other payments herein shall be payable in
the currency specified with respect to such payment or, if the currency is not
specified, in Dollars.  Except as
otherwise expressly provided herein, (x) all payments by the Borrower in
Dollars hereunder shall be made to the Administrative Agent, for the account of
the Lenders to which such payment is owed, at the Administrative Agent’s Office
in Dollars and in Same Day Funds not later than 3:00 p.m. (New York time)
on the date specified herein and (y) all payments by the Borrower in
Alternative Currency hereunder shall be made to the Administrative Agent’s
Office for payments in such Alternative Currency and in Same Day Funds not
later than 2:00 p.m. (London time) on the date specified herein.  The Administrative Agent will promptly distribute
to each Lender its Pro Rata Share of such payment in like funds as received by
wire transfer to such Lender’s Lending Office. 
All payments received by the Administrative Agent after 3:00 p.m.
New York time or 2:00 p.m. London time, as applicable shall be deemed
received on the immediately succeeding Business Day and any applicable interest
or fee shall continue to accrue.  Subject
to the definition of “Interest Period,” 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.


 


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


 


(ii)           Payments
by the Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
or such L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or such L/C Issuer, as the
case may be, receiving any such payment severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such L/C Issuer, in Same Day Funds with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.


 


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


 


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


 


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(d)           Obligation
of the Lenders Several.  The
obligations of the Lenders hereunder to make Loans, to fund participations in
Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are
several and not joint.  The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 11.04(c) on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on
such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Loan, to purchase its participation or to make its
payment under Section 11.04(c).


 


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


 


(f)            Insufficient
Funds.  If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, L/C Borrowings, interest and fees then due hereunder,
such funds shall be applied (i) first, toward payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and L/C Borrowings then due to such parties.


 


2.12                        Sharing
of Payments by Lenders.


 


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


 


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


 


(ii)           the provisions of this Section shall
not be construed to apply to (x) any payment made by the Borrower pursuant
to and in accordance with the express terms of this Credit Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C Obligations or
Swingline Loans to any assignee or participant, other than to the Borrower or
any Affiliate thereof (as to which the provisions of this Section shall apply).


 


67

















 


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


 


2.13                        Evidence
of Debt.


 


(a)           The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and 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 conclusive 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 the Administrative Agent a Note for 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 subsection (a) above,
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 Swingline 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)           Each
Lender having sold a participation in any of its Obligations, acting solely for
this purpose as agent for the Borrower, shall maintain a register for the
recordation of the names and addresses of such Participants (and each change
thereto, whether by assignment or otherwise) and the rights, interest or
obligation of such Participants in any Obligation, in any Commitment and in any
right to receive any payments hereunder.


 


ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)           Payments
Free of Taxes.  Except as otherwise
required by law (as determined in the good faith discretion of the applicable
withholding agent), any and all payments by or on account 


 


68

















 


of any obligation of the Credit Parties hereunder or under any other
Credit Document shall be made free and clear of and without reduction or
withholding for any Indemnified or Other Taxes, provided that if the
applicable withholding agent shall be required by applicable law (as determined
in the good faith discretion of the applicable withholding agent) to deduct or
withhold any Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable by the applicable Credit Party shall be increased
as necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums payable
under this Section) the Administrative Agent, Lender or L/C Issuer, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) the applicable withholding
agent shall make such deductions or withholdings and (iii) the applicable
withholding agent shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


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


 


(c)           Indemnification
by the Borrower.  Without duplication
of any amounts payable under Section 3.01(a), the Borrower shall indemnify
the Administrative Agent, each Lender and each L/C Issuer, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) payable by the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, and
any reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender or an L/C Issuer (with a
copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent
manifest error.  Upon the reasonable
request of any Credit Party, the Lenders, each L/C Issuer and the
Administrative Agent agree to use their reasonable efforts to cooperate with
such Credit Party (at such Credit Party’s direction and expense) in contesting
the imposition of, or claiming a refund of, any Indemnified Taxes or Other
Taxes paid by such Credit Party, whether directly to a Governmental Authority
or pursuant to this Section, that such Credit Party reasonably believes were
not correctly or legally asserted by the relevant Governmental Authority unless
the Lender, L/C Issuer or the Administrative Agent, as the case may be,
determines in good faith that pursuing such a contest or refund would be
materially disadvantageous to it.


 


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


 


(e)           Status
of Lenders.  Any Lender that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Credit Document shall deliver to the Borrower
(with a copy to the Administrative 


 


69

















 


Agent), at the time or times reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or as reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.


 


Without
limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States, any Foreign Lender to the
extent it may lawfully do so shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient)
on or prior to the date on which such Foreign Lender becomes a Lender under
this Credit Agreement, on or prior to the date on which any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form or certification previously
delivered by it (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent), whichever of the following is
applicable:


 


(i)            duly completed copies of IRS Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United
States is a party,


 


(ii)           duly completed copies of IRS Form W-8ECI,


 


(iii)          in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under Section 881(c) of
the Internal Revenue Code, (x) a certificate, in substantially the form of
Exhibit 3.01(e) (a “Non-Bank Certificate”), to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Internal Revenue
Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Internal Revenue Code and that interest payments being received are not
effectively connected with the Foreign Lender’s conduct of a U.S. trade or
business and (y) duly completed copies of IRS Form W-8BEN,


 


(iv)          in the case of a Foreign Lender that
does not act or ceases to act for its own account with respect to any portion
of any sums paid or payable to such Lender under any of the Credit Documents
(for example, in the case of a Foreign Lender that is a partnership for U.S.
federal income tax purposes for that is a participating Lender granting a
typical participation), duly completed copies of Internal Revenue Service Form W-8IMY,
together with the appropriate IRS Form W-8BEN, ECI or IMY, W-9 and/or
Non-Bank Certificate with respect to each beneficial owner (provided that, if
the Foreign Lender is a partnership, one or more of whose beneficial owners is
claiming the portfolio interest exception, the Foreign Lender may provide the
Non-Bank Certificate on behalf of such beneficial owners), and any other
certificate or statement of exemption required under the Internal Revenue Code
or the regulations thereunder, to establish that such Foreign Lender is not
acting for its own account with respect to a portion of any such sums


 


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payable to such Foreign
Lender and to establish that such remaining portion may be received without
deduction for, or at a reduced rate of, United States federal withholding tax;
or


 


(v)           any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in United
States federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower or
Administrative Agent to determine the withholding or deduction required to be
made, if any.


 


Any
Lender or L/C Issuer that is a United States person under Section 7701(a)(30)
of the Internal Revenue Code, to the extent it may lawfully do so, shall
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Lender or L/C Issuer becomes a Lender or L/C Issuer, as applicable, under this
Credit Agreement, on or prior to the date on which any such form or certification
expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form or certification previously delivered by it (and
from time to time thereafter upon the request of the Borrower or the
Administrative Agent), duly completed copies of Internal Revenue Service Form W-9
(or any successor form) certifying that such Lender or L/C Issuer is entitled
to an exemption from U.S. backup withholding tax.


 


(f)                                    Treatment of Certain Refunds. 
If the Administrative Agent, any Lender or an L/C Issuer determines, in
its reasonable discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by any Credit Party or
with respect to which a Credit Party has paid additional amounts pursuant to
this Section, it shall pay to the Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Credit Party under this Section with respect to the Indemnified Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent, such Lender or such L/C Issuer, as the case may
be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or such L/C
Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest (attributable to the period of time that the Borrower had
use of such funds) or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the
event the Administrative Agent, such Lender or such L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or any L/C Issuer to make
available its Tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.  Notwithstanding anything to the contrary, in
no event will any Lender or L/C Issuer be required to pay any amount to the
Borrower the payment of which would place such Lender or L/C Issuer in a less
favorable net after-tax position that such Lender or L/C Issuer would have been
in if the Indemnified Tax giving rise to such refund had never been imposed.


 


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 


 


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make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Adjusted Eurodollar Rate, or
any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the
London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Loans that are Base Rate Loans to
Eurodollar 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
Eurodollar 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 Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


3.03                        Inability
to Determine Rates.


 


If the
Required Lenders determine that for any reason in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank Eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Adjusted Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Adjusted Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each
Lender.  Thereafter, the obligation of
the Lenders to make or maintain Eurodollar 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 Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of
Loans that are Base Rate Loans in the amount specified therein.


 


3.04                        Increased
Cost; Capital Adequacy.


 


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


 


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


 


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


 


72





















 


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


 


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


 


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


 


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


 


(d)                                 Delay in Requests. 
Failure or delay on the part of any Lender or any L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than nine (9) months prior to the date that such Lender or such L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or such L/C
Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).


 


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3.05                        Compensation
for 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 reasonable loss, cost or expense incurred by it as a
result of:


 


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


 


(c)           any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;


 


including any reasonable 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. A certificate
as to the amount of such payment or liability delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on behalf of a Lender, shall be conclusive absent manifest error.


 


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
Eurodollar Rate Loan made by it at the Adjusted Eurodollar Rate for such Loan
by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.


 


3.06                        Mitigation
Obligations; Replacement of Lenders.


 


(a)           Designation
of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as
the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. 
The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)           Replacement
of Lenders.  If any Lender requests
compensation under Section 3.04, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, the Borrower may replace
such Lender in accordance with Section 11.13.


 


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(c)           Limitation
on Additional Amounts, Etc. 
Notwithstanding anything to the contrary contained in this Article III
of this Credit Agreement, unless a Lender gives notice to the Borrower that it
is obligated to pay an amount under this Article within nine (9) months
after the later of (i) the date the Lender incurs the respective increased
costs, loss, expense or liability, reduction in amounts received or receivable
or reduction in return on capital or (ii) the date such Lender has actual
knowledge of its incurrence of the respective increased costs, loss, expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to this Article III, to the extent
of the costs, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital that are incurred or suffered on
or after the date which occurs nine (9) months prior to such Lender giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to this Article III.


 


3.07                        Survival
Losses.


 


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


 


3.08                        Additional
Reserve Costs.


 


(a)           In
the case of any Lender making an Approved Currency Revolving Loan from a
Lending Office in the United Kingdom or a Participating Member State, such Lender shall be entitled to require the Borrower to pay,
contemporaneously with each payment of interest on each of such Loans,
additional interest on such Loan at a rate per annum equal to the Mandatory
Cost Rate calculated in accordance with the formula and in the manner set forth
in Schedule 3.08 hereto.


 


(b)           For
so long as any Lender is required to comply with reserve assets, liquidity,
cash margin or other requirements of any monetary or other authority (including
any such requirement imposed by the European Central Bank, the European System
of Central Banks or the Bank of Canada, but excluding requirements reflected in
the Statutory Reserves or the Mandatory Cost Rate) in respect of any of such
Lender’s Eurodollar Rate Loans, such Lender shall be entitled to require the
Borrower to pay, contemporaneously with each payment of interest on each of
such Lender’s Loans subject to such requirements, additional interest on such
Loan at a rate per annum specified by such Lender to be the cost to such Lender
of complying with such requirements in relation to such Loan.


 


(c)           Any
additional interest owed pursuant to paragraph (a) or (b) above shall
be determined in reasonable detail by the applicable Lender, which
determination shall be conclusive absent manifest error, and notified to the
Borrower (with a copy to the Administrative Agent) at least five Business Days
before each date on which interest is payable for the applicable Loan, and such
additional interest so notified to the Borrower by such Lender shall be payable
to the Administrative Agent for the account of such Lender on each date on
which interest is payable for such Loan.


 


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ARTICLE IV 


 


GUARANTY 


 


4.01                        The
Guaranty.


 


(a)           Each
of the Guarantors hereby jointly and severally guarantees to the Administrative
Agent and each of the holders of the Obligations, as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations (the “Guaranteed
Obligations”) in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if
any of the Guaranteed Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.


 


(b)           Notwithstanding
any provision to the contrary contained herein, in any other of the Credit
Documents, Swap Contracts or other documents relating to the Obligations, the
obligations of each Guarantor under this Credit Agreement and the other Credit
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.


 


4.02                        Obligations
Unconditional.


 


The
obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or other
documents relating to the Obligations, or any substitution, compromise,
release, impairment or exchange of any other guarantee of or security for any of
the Guaranteed Obligations, and, to the fullest extent permitted by applicable
Law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of
the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances.  Each Guarantor agrees
that such Guarantor shall have no right of subrogation, indemnity, reimbursement
or contribution against the Borrower or any other Guarantor for amounts paid
under this Article IV until such time as the Obligations have been
irrevocably paid in full and the commitments relating thereto have expired or
been terminated.  Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute
and unconditional as described above:


 


76

















 


(a)           at
any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Guaranteed Obligations shall
be extended, or such performance or compliance shall be waived;


 


(b)           any
of the acts mentioned in any of the provisions of any of the Credit Documents,
or other documents relating to the Guaranteed Obligations or any other
agreement or instrument referred to therein shall be done or omitted;


 


(c)           the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended in any respect, or
any right under any of the Credit Documents or other documents relating to the
Guaranteed Obligations, or any other agreement or instrument referred to
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;


 


(d)           any
Lien granted to, or in favor of, the Administrative Agent or any of the holders
of the Guaranteed Obligations as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or


 


(e)           any
of the Guaranteed Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall
be subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).


 


With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest, notice of acceptance of the
guaranty given hereby and of extensions of credit that may constitute
obligations guaranteed hereby, notices of amendments, waivers and supplements
to the Credit Documents and other documents relating to the Guaranteed
Obligations, or the compromise, release or exchange of collateral or security,
and all notices whatsoever, and any requirement that the Administrative Agent
or any holder of the Guaranteed Obligations exhaust any right, power or remedy
or proceed against any Person under any of the Credit Documents or any other
documents relating to the Guaranteed Obligations or any other agreement or
instrument referred to therein, or against any other Person under any other
guarantee of, or security for, any of the Obligations.


 


4.03                        Reinstatement.


 


Neither
the Guarantors’ obligations hereunder nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower, by reason of the Borrower’s bankruptcy or insolvency
or by reason of the invalidity or unenforceability of all or any portion of the
Guaranteed Obligations.  The obligations
of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings pursuant to any Debtor Relief Law or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each holder
of Guaranteed Obligations on demand for all reasonable costs and expenses
(including all reasonable fees, expenses and disbursements of any law 


 


77

















 


firm or other counsel) incurred by the Administrative
Agent or such holder of Guaranteed Obligations in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any Debtor Relief Law.


 


4.04                        Certain
Waivers.


 


Each
Guarantor acknowledges and agrees that (a) the guaranty given hereby may
be enforced without the necessity of resorting to or otherwise exhausting
remedies in respect of any other security or collateral interests, and without
the necessity at any time of having to take recourse against the Borrower
hereunder or against any collateral securing the Guaranteed Obligations or otherwise,
(b) it will not assert any right to require the action first be taken
against the Borrower or any other Person (including any co-guarantor) or
pursuit of any other remedy or enforcement of any other right and (c) nothing
contained herein shall prevent or limit action being taken against the Borrower
hereunder, under the other Credit Documents or the other documents and
agreements relating to the Guaranteed Obligations or from foreclosing on any
security or collateral interests relating hereto or thereto, or from exercising
any other rights or remedies available in respect thereof, if neither the
Borrower nor the Guarantors shall timely perform their obligations, and the
exercise of any such rights and completion of any such foreclosure proceedings
shall not constitute a discharge of the Guarantors’ obligations hereunder
unless as a result thereof, the Guaranteed Obligations shall have been
indefeasibly paid in full and the commitments relating thereto shall have
expired or been terminated, it being the purpose and intent that the Guarantors’
obligations hereunder be absolute, irrevocable, independent and unconditional
under all circumstances.


 


4.05                        Remedies.


 


The
Guarantors agree that, to the fullest extent permitted by law, as between the
Guarantors, on the one hand, and the Administrative Agent and the holders of
the Guaranteed Obligations, on the other hand, the Guaranteed Obligations may
be declared to be forthwith due and payable as provided in Section 9.02
(and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9.02) for purposes of Section 4.01,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Guaranteed Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors for purposes of Section 4.01.  The Guarantors acknowledge and agree that the
Guaranteed Obligations are secured in accordance with the terms of the
Collateral Documents and that the holders of the Guaranteed Obligations may
exercise their remedies thereunder in accordance with the terms thereof.


 


4.06                        Rights
of Contribution.


 


The
Guarantors hereby agree as among themselves that, in connection with payments
made hereunder, each Guarantor shall have a right of contribution from each
other Guarantor in accordance with applicable Law.  Such contribution rights shall be subordinate
and subject in 


 


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right of payment to the Guaranteed Obligations until
such time as the Guaranteed Obligations have been irrevocably paid in full and
the commitments relating thereto shall have expired or been terminated, and
none of the Guarantors shall exercise any such contribution rights until the
Guaranteed Obligations have been irrevocably paid in full and the commitments
relating thereto shall have expired or been terminated.


 


4.07                        Guaranty
of Payment; Continuing Guaranty.


 


The
guarantee in this Article IV is a guaranty of payment and not of
collection, and is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.


 


ARTICLE V 


 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 


 


5.01                        Conditions
to Closing Date.


 


The
effectiveness of this Credit Agreement is subject to satisfaction of the
following conditions precedent:


 


(a)                                  Executed Credit Agreement. 
The Administrative Agent’s receipt of counterparts of this Credit
Agreement dated as of the Closing Date, duly executed by a Responsible Officer
of the Borrower and by each Lender party thereto, and in form and substance
satisfactory to the Administrative Agent, the Lead Arrangers and each of the
Lenders.


 


(b)                                 [Reserved].


 


(c)                                  Officer Certificates. 
The following shall be true as of the Closing Date, and the
Administrative Agent shall have received a certificate or certificates of a
Responsible Officer of the Borrower, dated as of the Closing Date, certifying
each of the following:


 


(i)            Consents.  No consents, licenses or approvals are
required in connection with the execution, delivery and performance by any
Credit Party of the Credit Documents to which it is a party, other than as are
in full force and effect and, to the extent requested by the Administrative
Agent, are attached thereto;


 


(ii)           Material Adverse Effect.  There has been no event or circumstance since
December 31, 2007 (other than an event or condition set forth in Schedule
5.01(c)(ii) hereto (each such event or condition, so listed on such
Schedule, a “Scheduled Matter”), except for any development or change in
any such Scheduled Matter after June 19, 2008 that would, in and of
itself, have or could be reasonably expected to have a Material Adverse
Effect), that has had or would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect;


 


(iii)          Material Litigation.  There shall be no action, suit, investigation
or proceeding pending in any court or before any arbitrator or Governmental
Authority that would reasonably be expected to have a Material Adverse Effect;
and


 


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(iv)          Representations and Warranties; No
Default.  The conditions set forth in
Sections 5.01(d) and (e) have been satisfied as of the
Closing Date.


 


(d)                                 The representations and warranties set
forth in Sections 6.06, 6.12, 6.13, 6.14 and 6.15
shall be true and correct as of the Closing Date.


 


(e)                                  No Default or Event of Default shall have
occurred and be continuing or would result from the occurrence of the Closing
Date.


 


Without limiting
the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Credit 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.


 


5.02                        Conditions
to the Funding Date.


 


The
obligation of each Lender and each L/C Issuer to make its initial Credit
Extension hereunder is subject to satisfaction of the following conditions
precedent:


 


(a)                                  Execution of Credit Documents and
Joinders.  The Administrative Agent shall have received
counterparts of (i) a Joinder Agreement to the Credit Agreement duly executed
by a Responsible Officer of each Guarantor, (ii) the Security Agreement,
duly executed by a Responsible Officer of the Borrower and each Guarantor, (iii) the
Pledge Agreement, duly executed by a Responsible Officer of the Borrower and
each Guarantor and (iv) Notes, to the extent requested by a Lender by
written notice delivered to the Borrower at least five (5) Business Days
prior to the Funding Date, duly executed by a Responsible Officer of the Borrower.


 


(b)                                 Spin-Off.  The
Administrative Agent shall be reasonably satisfied that the Spin-Off will be
consummated substantially simultaneously with, or within five (5) Business
Days after, the initial Borrowing of Term Loans hereunder.  The Administrative Agent shall be satisfied
that all governmental, shareholder and third party consents and approvals
necessary in connection with the Spin-Off shall have been obtained and all
applicable waiting periods shall have expired without any continuing action
being taken by any authority that would restrain, prevent or impose any
material adverse conditions on the Borrower and its Subsidiaries or the Transactions,
and no Law or regulation shall be applicable which in the reasonable judgment
of the Administrative Agent would have such effect, in each case to the extent
the foregoing could either reasonably be expected to prevent the consummation
of the Spin-Off as contemplated by the Separation Agreement or could reasonably
be expected to result in a Material Adverse Effect.


 


(c)                                  Personal Property Collateral. 
The Collateral Agent’s receipt of the following:


 


(i)            Lien Priority.  Evidence, including UCC, tax and judgment
lien searches from the jurisdiction of formation and jurisdiction of the chief
executive office of each Credit Party and intellectual property searches, that
none of the Collateral is subject to any Liens (in each case other than Permitted
Liens);


 


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(ii)                                  UCC Financing Statements. 
Such UCC financing statements as are necessary or appropriate, in the
Collateral Agent’s discretion, to perfect the security interests in the Collateral;


 


(iii)                               Intellectual Property. 
Such patent, trademark and copyright security agreements as are
necessary or appropriate, in the Collateral Agent’s discretion, to perfect the
security interests in the Credit Parties’ material IP Rights;


 


(iv)                              Capital Stock. 
Original certificates evidencing the Capital Stock pledged pursuant to
the Collateral Documents and required to be delivered thereunder (to the extent
such Capital Stock is certificated and other than certificates of Capital Stock
of Foreign Subsidiaries), together with undated stock transfer powers executed
in blank; provided that with respect to the stock of any Subsidiary of
the Borrower, the Administrative Agent may, in its sole discretion, provide a
reasonable amount of time after the initial funding for the Borrower to deliver
such original certificates; and


 


(v)                                 Promissory Notes. 
Original promissory notes to the extent required by the Security
Agreement, if any, evidencing intercompany loans or advances owing to any
Credit Party by any Subsidiary of the Borrower, together with undated allonges
executed in blank (provided that the Administrative Agent may, in its
sole discretion, provide a reasonable amount of time after the initial funding
for the Borrower to deliver such original promissory notes).


 


(d)                                 Real Property Collateral. 
The Collateral Agent shall have received:


 


(i)                                     a Mortgage encumbering each Mortgaged
Property in favor of the Collateral Agent, for the benefit of the holders of
the Obligations, duly executed and acknowledged by each Credit Party that is
the owner of or holder of any interest in such Mortgaged Property, and
otherwise in form for recording in the recording office of each applicable
political subdivision where each such Mortgaged Property is situated, together
with such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof to create a lien
under applicable requirements of law, and such financing statements and any
other instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, all of which shall be substantially in the form of Exhibit 1.01D
or otherwise in form and substance reasonably satisfactory to Collateral Agent;


 


(ii)                                  with respect to each Mortgage, a policy
of title insurance (or marked up title insurance commitment having the effect of
a policy of title insurance) insuring the Lien of such Mortgage as a valid
first mortgage Lien on the Mortgaged Property and fixtures described therein in
the amount equal to not less than 115% of the fair market value of such
Mortgaged Property and fixtures, which fair market value is set forth on Schedule
5.02(d)(ii), which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by
the Title Company, (B) have been supplemented by the following endorsements:
“tie-in” or “cluster” (i.e.,
policies which insure against losses regardless of location or allocated value
of the insured property up to a stated maximum coverage amount), usury, first
loss, last dollar, zoning, contiguity, revolving credit, doing business, 


 


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non-imputation, public
road access, survey, variable rate, environmental lien, subdivision, mortgage
recording tax, separate tax lot, revolving credit, and so-called comprehensive
coverage over covenants and restrictions, in each case to the extent requested
by the Administrative Agent and available on commercially reasonable terms, and
(C) contain no exceptions to title other than such as would be permitted
under Section 8.01; provided, that this condition precedent
may be waived in the sole discretion of the Administrative Agent (it being
understood that in such case, the requirements hereof shall become a condition
subsequent, to be met in a timeframe determined by the Administrative Agent in
its sole discretion);


 


(iii)                               evidence reasonably acceptable to the
Collateral Agent of payment by Borrower of all expenses required for the
recording of the Mortgages and issuance of the Title Policies referred to
above; and


 


(iv)                              a completed “Life-of-Loan” Federal
Emergency Management Agency Standard Flood Hazard Determination with respect to
each Mortgaged Property (together with a notice about special flood hazard area
status and flood disaster assistance duly executed by the Borrower and each
Credit Party relating thereto).


 


(e)                                  Evidence of Insurance. 
The Collateral Agent’s receipt of copies of binders with respect to all
property and liability insurance required to be maintained pursuant to Section 7.08
and the other Credit Documents (including without limitation, flood insurance
policies to the extent required by any Credit Document); in form satisfactory
to the Administrative Agent.


 


(f)                                    Opinions of Counsel. 
The Administrative Agent’s receipt of a customary duly executed opinion
of Wachtell, Lipton Rosen & Katz and of appropriate local counsel to
the Credit Parties, dated as of the Funding Date, in each case reasonably
satisfactory to the Administrative Agent.


 


(g)                                 Organization Documents, Etc. 
The Administrative Agent’s receipt of a duly executed certificate of a
Responsible Officer of each Credit Party, attaching each of the following
documents and certifying that each is true, correct and complete and in full
force and effect as of the Funding Date:


 


(i)                                     Charter Documents. 
Copies of its articles or certificate of organization or formation,
certified to be true, correct and complete as of a recent date by the
appropriate Governmental Authority of the jurisdiction of its organization or
formation;


 


(ii)                                  Bylaws.  Copies of its
bylaws, operating agreement or partnership agreement;


 


(iii)                               Resolutions. 
Copies of its resolutions approving and adopting the Credit Documents to
which it is party, the transactions contemplated therein, and authorizing the
execution and delivery thereof;


 


(iv)                              Incumbency.  Incumbency
certificates identifying the Responsible Officers of such Credit Party that are
authorized to execute Credit Documents and to act on such Credit Party’s behalf
in connection with the Credit Documents; and


 


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(v)                                 Good Standing Certificates. 
Certificates of good standing or the equivalent from its jurisdiction of
organization or formation, in each case certified as of a recent date by the
appropriate Governmental Authority.


 


(h)                                 Officer Certificates. 
The following shall be true as of the Funding Date, and the
Administrative Agent shall have received a customary certificate or
certificates of a Responsible Officer of the Borrower, dated as of the Funding
Date, certifying each of the following:


 


(i)                                     Material Adverse Effect. 
There has been no event or circumstance since December 31, 2007
(other than a Scheduled Matter, except for any development or change in any
such Scheduled Matter after June 19, 2008 that would, in and of itself,
have or could be reasonably expected to have a Material Adverse Effect), that
has had or would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect; and


 


(ii)                                  Material Litigation. 
There shall be no action, suit, investigation or proceeding pending in any
court or before any arbitrator or Governmental Authority that would reasonably
be expected to have a Material Adverse Effect.


 


(i)                                     Pro Forma Financial Statements. 
The Lenders shall have received the balance sheet as of March 31,
2008 and, if the Funding Date is on or after August 31, 2008, June 30,
2008, and statements of income and cash flows for the period ended March 31,
2008 and, if the Funding Date is on or after August 31, 2008, June 30,
2008, in each case as to the Borrower and its Subsidiaries giving effect to the
Transactions on a pro forma basis.


 


(j)                                     Financial Statements. 
Copies of the financial statements referred to in Section 6.05.


 


(k)                                  Separation Agreement. 
The Administrative Agent shall have received a final, execution version
of the Separation Agreement, which shall not have any changes since the draft
of July 25, 2008 provided to the Lead Arrangers that are materially
adverse to the Lenders, and there shall have been no changes to the
structure or terms of the Spin-Off and related transactions pursuant to Section 12.01
of the Separation Agreement that are materially adverse to the Lenders, in each
case, unless
reasonably satisfactory to the Lead Arrangers.


 


(l)                                     Solvency.  The
Administrative Agent shall have received a customary certificate, dated as of
the Funding Date, certified by the chief financial officer of the Borrower,
stating that the Borrower and its Subsidiaries, on a consolidated basis after
giving effect to the Transactions, are Solvent.


 


(m)                               Fees and Expenses. 
All fees and expenses (including, unless waived by the Administrative
Agent, all reasonable fees, expenses and disbursements of any law firm or other
counsel (including any local counsel)) invoiced to the Borrower at least two
Business Days prior to the Funding Date and required to be paid on or before
the Funding Date shall have been paid.


 


(n)                                 Senior Notes. 
The Borrower shall have consummated the issuance of the Senior Notes.


 


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(o)                                 Indebtedness. 
After giving effect to the Funding Date, the Borrower and its Subsidiaries
shall have no Indebtedness other than with respect to the Term Loans, the
Existing Letters of Credit, the Senior Notes, Indebtedness permitted pursuant
to Section 8.03(b) and other Indebtedness incurred in the
ordinary course of business since the Closing Date and otherwise permitted
hereunder and other Indebtedness as may be reasonably acceptable to the Lead Arrangers.


 


(p)                                 Schedule 7.08. 
The Borrower shall have delivered to the Administrative Agent Schedule
7.08.


 


(q)                                 Funding Date. The Funding
Date shall have occurred on or prior to September 30, 2008.


 


5.03                        Conditions
to All Credit Extensions.


 


The
obligation of each Lender and each L/C Issuer to honor any Request for Credit Extension
is subject to the following conditions precedent:


 


(a)                                  The representations and warranties of the
Borrower and each other Credit Party contained in Article VI shall
be true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date (provided that
representations and warranties that are qualified by materiality shall be true
and correct in all respects).


 


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


 


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


 


Each
Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty by the Borrower that the conditions specified in Sections
5.03(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


The
Credit Parties represent and warrant to the Administrative Agent and the
Lenders that (it being understood and agreed that on the Closing Date only, the
representations and warranties set forth in this Article VI shall only be
made to the extent set forth in Section 5.01(d)):


 


6.01                        Existence,
Qualification and Power.


 


Each
Credit Party (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or formation, (b) has
all requisite power 


 


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and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) execute, deliver and perform
its obligations under the Credit Documents to which it is a party and (ii) except
to the extent it would not reasonably be expected to have a Material Adverse Effect,
own its assets and carry on its business, and (c) except to the extent it
would not reasonably be expected to have a Material Adverse Effect, is duly
qualified and is licensed 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 or license.


 


6.02                        Authorization;
No Contravention.


 


The
execution, delivery and performance by each Credit Party of each Credit Document
to which it is party have been duly authorized by all necessary corporate or
other organizational action and do not (a) contravene the terms of such
Credit Party’s Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien (other than Permitted
Liens) under, (i) any Contractual Obligation to which such Credit Party is
party or (ii) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which such Credit Party or its Property is subject; or
(c) violate any Law applicable to such Credit Party and the relevant
Credit Documents, except, in the case of clauses (b) or (c) of
this Section 6.02 only, as would not reasonably be expected to have
a Material Adverse Effect.


 


6.03                        Governmental
Authorization; Other Consents.


 


No
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 the execution, delivery or performance by, or
enforcement against, any Credit Party of this Credit Agreement or any other
Credit Document (other than (a) as have already been obtained and are in
full force and effect, (b) filings to perfect security interests granted
pursuant to the Credit Documents and (c) approvals, consents, exemptions,
authorizations, or other actions, notices or filings the failure to procure
which would not reasonably be expected to have a Material Adverse Effect).


 


6.04                        Binding
Effect.


 


Each
Credit Document has been duly executed and delivered by each Credit Party that
is party hereto or thereto.  Each Credit
Document constitutes legal, valid and binding obligations of such Credit Party,
enforceable against such Credit Party in accordance with its terms, except to
the extent the enforceability thereof may be limited by applicable Debtor
Relief Laws affecting creditors’ rights generally and by equitable principles
of law (regardless of whether enforcement is sought in equity or at law) and
implied covenants of good faith and fair dealing.


 


6.05                        Financial
Statements.


 


The
audited combined balance sheets of the Borrower and its Subsidiaries as of December 31,
2007 and December 31, 2006 and the unaudited combined balance sheet as of March 31,
2008 and March 31, 2007 and, if the Funding Date is on or after August 31,
2008, June 30, 2008 and June 30, 2007, and the related combined
statements of income or operations, shareholders’ equity (or invested equity)
and cash flows for the years ending December 31, 2007, December 31,
2006 and December 31, 2005 and the fiscal quarters ending March 31,
2008 and (solely 


 


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with respect to the statements of income or operations
and cash flows) March 31, 2007 and, if the Funding Date is on or after August 31,
2008, for the fiscal quarters ended June 30, 2008 and (solely with respect
to the statements of income or operations and cash flows) June 30, 2007, including
the notes thereto, (i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise expressly
noted therein and (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and its results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein.


 


The
unaudited pro forma condensed combined balance sheet of the Borrower and its Subsidiaries
as at March 31, 2008, and, if the Funding Date is on or after August 31,
2008, June 30, 2008, and the related unaudited pro forma condensed
combined statements of operations of the Borrower and its Subsidiaries for the
three or, if the Funding Date is on or after August 31, 2008, six, months
then ended and for the year ended December 31, 2007, certified by the
chief financial officer or treasurer of the Borrower, copies of which have been
furnished to each Lender, fairly present the combined pro forma financial
condition of the Borrower and its Subsidiaries as at such date and the combined
pro forma results of operations of the Borrower and its Subsidiaries for the
periods ended on such dates, in each case giving effect to the Transactions,
all in accordance with Regulation S-X under the Securities Laws, as amended and
the Borrower believes that the assumptions underlying such unaudited pro forma
combined financial statements are reasonable.


 


6.06                        No
Material Adverse Effect.


 


Since December 31,
2007, there has been no event or circumstance, either individually or in the
aggregate, that has had or would reasonably be expected to have a Material
Adverse Effect (other than a Scheduled Matter, except for any development or
change in any such Scheduled Matter after June 19, 2008 that would, in and
of itself, have or could be reasonably expected to have a Material Adverse
Effect).


 


6.07                        Litigation.


 


There
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against any member of the Consolidated Group or
against any of their properties or revenues that either individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect.


 


6.08                        No
Default.


 


No
Default or Event of Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Credit Agreement or
any other Credit Document.


 


6.09                        Ownership
of Property; Liens.


 


Each
of the Borrower and its Subsidiaries has good and valid title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in or 


 


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right to use, all its other material property, except
as would not reasonably be expected to have a Material Adverse Effect, and the
property of the Consolidated Group is subject to no Liens, other than Permitted
Liens.


 


6.10                        Taxes.


 


Except as would not reasonably be
expected, individually or in the aggregate to have a Material Adverse
Effect:  (a) the Borrower and each
of its Subsidiaries (i) has timely filed (or has had filed on its behalf)
all Tax returns required to be filed and (ii) has paid prior to
delinquency all Taxes levied or imposed upon it or its properties, income or
assets otherwise due and payable (including in its capacity as a withholding
agent), except for Taxes that are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided, in accordance with GAAP, if such contest suspends enforcement or
collection of the claim in question; (b) neither the Borrower nor any of
its Subsidiaries is aware of any proposed or pending tax assessments,
deficiencies or audits; and (c) neither the Borrower nor any of its
Subsidiaries has “participated” in a “listed transaction” within the meaning of
Treasury Regulation Section 1.6011-4.


 


6.11                        ERISA
Compliance.


 


(a)                                  Each Pension Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently pending before the IRS with respect thereto and, to
the knowledge of the Borrower, nothing has occurred that would prevent, or
cause the loss of, such qualification except in such instances in which the
failure to comply therewith either individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.  The Borrower and each ERISA Affiliate have
made all required contributions to each Pension Plan subject to Section 412
of the Internal Revenue Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Pension Plan except in
such instances in which the failure to comply therewith either individually or
in the aggregate would not reasonably be expected to have a Material Adverse
Effect.


 


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


 


(c)                                  (i) No ERISA Event has occurred or
is reasonably expected to occur; (ii) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred that, 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 (iii) neither the Borrower nor
any ERISA Affiliate has engaged in a transaction that would reasonably be
expected to be subject to Sections 4069 or 4212(c) of ERISA which in the
case of clause (i) through (iii) above, would
reasonably be expected to have a Material Adverse Effect.


 


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6.12                        Subsidiaries.


 


After
giving effect to any modifications or updates pursuant to the last sentence of
this Section 6.12, set forth on Schedule 6.12 is a list
of all Subsidiaries of the Borrower immediately after giving effect to the
consummation of the Spin-Off, together with the jurisdiction of organization,
classes of Capital Stock and ownership and ownership percentages of each such
Subsidiary as of such date.  After giving
effect to any modifications or updates pursuant to the last sentence of this Section
6.12, Schedule 6.12 identifies the Subsidiaries that shall be
parties to the Pledge Agreement and Security Agreement after giving effect to
the consummation of the Spin-Off.  The
outstanding Capital Stock has been validly issued, is owned free of Liens
(other than Permitted Liens), and with respect to any outstanding shares of
Capital Stock of a corporation, such shares have been validly issued and are
fully paid and non-assessable.  The
outstanding shares of Capital Stock are not subject to any buy-sell, voting
trust or other shareholder agreement except as identified on Schedule 6.12.  The Borrower, may on or prior to the Funding
Date, provide information from time to time to modify and update the
information set forth on Schedule 6.12 in a manner reasonably
satisfactory to the Administrative Agent.


 


6.13                        Margin
Regulations; Investment Company Act.


 


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


 


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


 


6.14                        Disclosure.


 


No
written report, financial statement, certificate or other information (taken as
a whole) furnished by or on behalf of any Credit Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Credit Agreement or delivered hereunder or under any
other Credit Document (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each
case as of the date such information is provided and as of the Closing Date and
the Funding Date; provided that, with respect to projected financial
information and estimates, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time.


 


6.15                        Compliance
with Laws.


 


Each
member of the Consolidated Group is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions, settlements or
other agreements with any Governmental Authority and decrees applicable to it
or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good
faith by appropriate proceedings diligently conducted or (b) the failure
to comply 


 


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therewith, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.


 


6.16                        Solvency.


 


As of
the Funding Date, the Borrower and its Subsidiaries, on a consolidated basis,
are, and after giving effect to the Transactions will be, Solvent.


 


6.17                        Intellectual
Property; Licenses, Etc.


 


Except
as would not reasonably be expected to have a Material Adverse Effect, as of
the Funding Date, each member of the Consolidated Group owns, or possesses the
right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property
rights (collectively, “IP Rights”) that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person.  As of the Funding
Date, no claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Credit Parties, threatened, that, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect.


 


6.18                        Security
Agreement.


 


The security interest
granted pursuant to the Security Agreement (i) will constitute a valid and
perfected security interest in the Collateral (as to which perfection may be
obtained by the filings or other actions described in clause (A), (B) or (C) of
this Section 6.18) in favor of the Collateral Agent, for the
benefit of the holders of the Obligations, as collateral security for the
Obligations, upon (A) the filing of all financing statements naming each
Grantor as “debtor” and the Collateral Agent as “secured party” and describing
the Collateral in the applicable filing offices, (B) delivery of all Instruments,
Chattel Paper and negotiable Documents to the Collateral Agent and (C) completion
of the filing, registration and recording of a fully executed agreement in the
form of the Security Agreement (or a supplement thereto) and containing a
description of all Collateral constituting intellectual property in the United
States Patent and Trademark Office within the three month period (commencing as
of the date hereof) or, in the case of Collateral constituting intellectual
property acquired after the date hereof, thereafter pursuant to 35 USC
§ 261 and 15 USC § 1060 and the regulations thereunder with respect
to United States Patents and United States registered Trademarks and in the
United States Copyright Office within the one month period (commencing as of
the date hereof) or, in the case of Collateral constituting intellectual
property acquired after the date hereof, thereafter with respect to United
States registered Copyrights pursuant to 17 USC § 205 and the regulations
thereunder and otherwise as may be required pursuant to the laws of any other
necessary jurisdiction to the extent that a security interest may be perfected
by such filings, registrations and recordings, and (ii) are prior to all
other Liens on the Collateral other than Liens permitted by Section 8.01.  Unless otherwise specified in this Credit
Agreement, solely with respect to this Section 6.18 capitalized
terms used and not otherwise defined in this Credit Agreement shall have the
meanings provided in the Security Agreement.


 


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6.19        Pledge Agreement.


 


The
Pledge Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the holders of the Obligations, a legal, valid and
enforceable security interest in the Collateral identified therein, except to
the extent the enforceability thereof may be limited by applicable Debtor
Relief Laws affecting creditors’ rights generally and by equitable principles
of law (regardless of whether enforcement is sought in equity or at law) and
the Pledge Agreement shall create a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Collateral, in each case prior and superior in right to any other Lien
other than Permitted Liens (i) with respect to any such Collateral that is
a “security” (as such term is defined in the UCC) and is evidenced by a
certificate, when such Collateral is delivered to the Collateral Agent with
duly executed stock powers with respect thereto, (ii) with respect to any
such Collateral that is a “security” (as such term is defined in the UCC) but
is not evidenced by a certificate, when UCC financing statements in appropriate
form are filed in the appropriate filing offices in the jurisdiction of
organization of the pledgor or when “control” (as such term is defined in the
UCC) is established by the Collateral Agent over such interests in accordance
with the provision of Section 8-106 of the UCC, or any successor provision,
and (iii) with respect to any such Collateral that is not a “security” (as
such term is defined in the UCC) (to the extent perfection of a Lien in such
Collateral can be obtained by filing UCC financing statements), when UCC
financing statements in appropriate form are filed in the appropriate filing
offices in the jurisdiction of organization of the pledgor.


 


6.20        Mortgages.


 


Upon the execution and delivery thereof, each of the
Mortgages will be effective to create in favor of the Collateral Agent, for the
ratable benefit of the holders of the Obligations, a legal, valid and
enforceable security interest in the Mortgaged Properties identified therein in
conformity with applicable Law, except to the extent the enforceability thereof
may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally
and by equitable principles of law (regardless of whether enforcement is sought
in equity or at law) and, when the Mortgages and UCC financing statements in
appropriate form are duly recorded at the appropriate offices, and recording or
similar taxes, if any, are paid, the Mortgages shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such Mortgaged Properties, in each
case prior and superior in right to any other Lien (other than Permitted
Liens).


 


ARTICLE VII

AFFIRMATIVE COVENANTS


 


Until
the Loan Obligations shall have been paid in full or otherwise satisfied, and
the Commitments hereunder shall have expired or been terminated, the Borrower
will, and will cause each of its Subsidiaries to:


 


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7.01        Financial Statements.


 


Deliver to the Administrative Agent and each Lender:


 


(a)           as soon as available, but in
any event within ten (10) days of the date the Borrower is required to
file its Form 10-K with the SEC and in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and the Consolidated Group as at the end of such
fiscal year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by (i) a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and applicable Securities
Laws 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 or
other material qualification or exception, (ii) if otherwise prepared by
the Borrower in the ordinary course of its business, an unaudited  consolidating balance sheet of the Borrower
(limited to the “HSN” and “Cornerstone” businesses) as at the end of such
fiscal year, and a related unaudited consolidating statement of income or
operations for such fiscal year, and (iii) if required by Section 404
of Sarbanes-Oxley, an attestation report of such Registered Public Accounting
Firm as to the Borrower’s internal controls pursuant to Section 404 of
Sarbanes-Oxley; and


 


(b)           as soon as available, but in
any event within ten (10) days of the date the Borrower is required to
file its Form 10-Q with the SEC and in any event not later than forty-five
(45) days (or, solely in the case of the fiscal quarter of the Borrower ending June 30,
2008, 61 days) after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Borrower, (i) a consolidated balance
sheet of the Borrower and the Consolidated Group as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion
of the Borrower’s fiscal year then ended, and (ii) if otherwise prepared
by the Borrower in the ordinary course of its business, a consolidating balance
sheet of the Borrower (limited to the “HSN” and “Cornerstone” businesses)  as at the end of such fiscal quarter, and the
related consolidating statements of income or operations, 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 the financial condition, results of operations,
shareholders’ equity and cash flows of the Consolidated Group in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes; provided that, with respect to the fiscal quarter ended June 30,
2008, such financial statements may be presented on a basis consistent with the
historical financial statements referred to in the first paragraph of Section 6.05.


 


As to any information contained in materials furnished pursuant to Section 7.02(c),
the Borrower shall not be separately required to furnish such information under
subsection (a) or (b) above, but 


 


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the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in subsections (a) and
(b) above at the times specified therein.


 


7.02        Certificates; Other Information.


 


Deliver to the Administrative Agent and each Lender:


 


(a)           within five (5) Business Days
following the delivery of the financial statements referred to in Section 7.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default with respect
to financial covenants or, if any such Default or Event of Default shall exist,
stating the nature and status of such event (which may be limited to the extent
consistent with industry practice or the policy of the accounting firm);


 


(b)           within five (5) Business Days
following each delivery of the financial statements referred to in Sections
7.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower (i) commencing with the fiscal
quarter ended September 30, 2008, setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with
the financial covenants contained herein, (ii) certifying that no Default
or Event of Default exists as of the date thereof (or the nature and extent
thereof and proposed actions with respect thereto), (iii) setting forth a
list of each Subject Disposition and Involuntary Disposition effected during
the fiscal quarter or fiscal year, as the case may be, covered by such financial
statements, to the extent the Net Cash Proceeds received in such Subject
Disposition (or series of related Subject Dispositions) or Involuntary
Disposition (or series of related Involuntary Dispositions) exceed $5.0 million
or the Net Cash Proceeds received in all Subject Dispositions or Involuntary
Dispositions effected during such fiscal year exceeds $10.0 million (or the
elapsed portion of such fiscal year in the case of a Compliance Certificate
relating to a fiscal quarter), and whether the Borrower and its Subsidiaries
intend to reinvest the Net Cash Proceeds thereof or to use such Net Cash
Proceeds to prepay the Loans and (iv) a calculation of the Cumulative
Credit (in reasonable detail) as of the last day of the period covered by such
financial statements;


 


(c)           copies of all annual, regular,
periodic and special reports and registration statements that the Borrower may
file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto;


 


(d)           promptly, such additional information
regarding the business, financial or corporate affairs of any Credit Party or
any Subsidiary of a Credit Party, or compliance with the terms of the Credit
Documents, as the Administrative Agent or any Lender (acting through the
Administrative Agent) may from time to time reasonably request;


 


(e)           promptly after the furnishing
thereof, copies of any material financial statement or report furnished to any
holder of material Indebtedness of any Credit Party or of any of its
Subsidiaries pursuant to the terms of any indenture, loan or credit or similar


 


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agreement and not otherwise required to be furnished
to the Lenders pursuant to Section 7.01 or any other clause of this
Section 7.02;


 


(f)            as soon as available, but in any
event no more than sixty (60) days following the beginning of each fiscal year
of the Borrower, annual expense budgets of the Borrower and its Subsidiaries on
a consolidated basis, for such fiscal year of the Borrower; and


 


(g)           Within 15 Business Days after the
date of any Major Disposition, the Borrower shall notify the Administrative
Agent thereof and whether and to what extent the Net Cash Proceeds received
therefrom is intended to be used to reinvest or make prepayments pursuant to Section 2.06(b)(ii).


 


Documents
required to be delivered pursuant to Sections 7.01 or 7.02 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 11.02; or (ii) on which such
documents are posted on the Borrower’s behalf on an internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent) including, to the extent the Lenders and the
Administrative Agent have access thereto and such documents are available
thereon, the EDGAR database and sec.gov; provided that the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent of the posting of any such documents. 
Except for such Compliance Certificates, the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


The
Credit Parties hereby acknowledge that the Administrative Agent, BAS and/or
MLPF&S will make available to the Lenders and each L/C Issuer materials
and/or information provided by or on behalf of the Credit Parties hereunder
(collectively, the “Credit Party Materials”) by posting the Credit Party
Materials on IntraLinks or another similar electronic system (the “Platform”)
and that certain of the Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with respect to the
Credit Parties or their securities) (each, a “Public Lender”).  The Credit Parties hereby agree that so long
as any Credit Party is the issuer of any outstanding debt or equity securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (1) all Credit Party Materials
that are to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” (which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof), or otherwise indicated to the
Administrative Agent as being “PUBLIC”; (2) by marking or otherwise
indicating the Credit Party Materials “PUBLIC,” the Credit Parties shall be
deemed to have authorized the Administrative Agent, BAS, MLPF&S and each
L/C Issuer and the Lenders to treat such Credit Party Materials as not
containing any material non-public information with respect to the Credit
Parties or their securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such
Credit Party Materials constitute Information, they shall be treated as set
forth in Section 11.07); 


 


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(3) all Credit Party Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
as “Public Investor”; and (4) the Administrative Agent, BAS and MLPF&S
shall be entitled to treat any Credit Party Materials that are not marked or
otherwise indicated “PUBLIC” as being suitable only for posting on a portion of
the Platform not marked as “Public Investor.”


 


7.03        Notification.


 


Promptly,
and in any event within two Business Days after any Responsible Officer of the
Borrower or any of its material Subsidiaries obtains knowledge thereof, notify
the Administrative Agent and each Lender of:


 


(a)           the occurrence of any Default or
Event of Default; and


 


(b)           the filing or commencement of any
litigation, investigation or proceeding affecting any Credit Party which would
reasonably be expected to have a Material Adverse Effect.


 


7.04        Preservation of Existence.


 


Except
as otherwise permitted hereunder, do all things necessary to preserve and keep
in full force and effect (x) its existence and (y) its rights,
franchises and authority, except (i) to the extent, in the case of clauses
(x) (with respect to any Subsidiary only and not the Borrower) and
(y), that the failure to do so would not have a Material Adverse Effect, (ii) with
respect to any Subsidiary only and not the Borrower, to the extent otherwise
permitted by Section 8.04 hereof, and (iii) for the
liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries,
to the extent such assets exceed estimated liabilities, are acquired by the
Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or
dissolution; provided that Subsidiaries that are Guarantors may not be
liquidated into Subsidiaries that are not Guarantors.


 


7.05        Payment of Taxes and Other
Obligations.


 


(a)           Pay
and discharge (i) all Taxes imposed upon it, or upon its income or
profits, or upon any of its properties, before they become delinquent, (ii) all
lawful claims (including claims for labor, material and supplies) that, if
unpaid, might give rise to a Lien upon any of its properties, and (iii) except
as prohibited hereunder, all of its other Indebtedness as it becomes due, except
in each case to the extent that the failure to do so would not, individually or
in the aggregate, have a Material Adverse Effect; provided that no such
Person shall be required to pay any amount that is being contested in good
faith by appropriate proceedings and for which adequate reserves, determined in
accordance with GAAP, have been established, if such contest suspends enforcement
or collection of the claim in question.


 


(b)           Timely
and correctly file all Tax returns required to be filed by it, except for failures
to file that would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.


 


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7.06        Compliance with Law.


 


Comply
with the requirements of all applicable laws, rules, regulations and orders of
any Governmental Authority, a breach of which would result in a Material
Adverse Effect, except where contested in good faith by appropriate proceedings
diligently pursued.


 


7.07        Maintenance of Property.


 


Maintain
and preserve its material properties and equipment in good repair, working order
and condition, normal wear and tear and casualty and condemnation excepted, and
make all repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto as may be necessary or proper, to the extent and in
the manner customary for similar businesses.


 


7.08        Insurance.


 


(a)           Maintain
at all times in force and effect insurance in such amounts, covering such risks
and liabilities and with such deductibles or self-insurance retentions as
determined by the Borrower in its reasonable business judgment.  The Collateral Agent shall be named as loss
payee, additional insured and/or mortgagee, as its interests may appear, with
respect to any such insurance providing coverage in respect of any collateral
under the Collateral Documents, and the Borrower shall request that each
provider of any such insurance to agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the Collateral
Agent, that it will give the Collateral Agent thirty (30) days’ prior written
notice before any such policy or policies shall be altered in any material
respect or canceled, and that no act or default of any member of the Consolidated
Group or any other Person shall affect the rights of the Collateral Agent or
the Lenders under such policy or policies. 
The insurance coverage for the Consolidated Group as of the Funding Date
is described as to type and amount on Schedule 7.08 (which schedule, for the
avoidance of doubt, shall be delivered to the Administrative Agent on or prior
to the Funding Date).


 


(b)           If
any portion of any Mortgaged Property is at any time located in an area identified
by the Federal Emergency Management Agency (or any successor agency) as a
Special Flood Hazard Area  with respect
to which flood insurance has been made available under the National Food Insurance
Act of 1968 (as now or hereafter in effect or successor act thereto), then the
Borrower shall, or shall cause each Credit Party to (i) maintain, or cause
to be maintained, with a financially sound and reputable insurer, flood
insurance in an amount and otherwise sufficient to comply with all applicable rules and
regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver
to the Administrative Agent evidence of such compliance in form reasonably
acceptable to the Administrative Agent.


 


7.09        Books and Records.


 


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


 


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7.10        Inspection Rights.


 


Permit
representatives and independent contractors of the Administrative Agent or any
Lender (in the case of such Lender, coordinated through the Administrative
Agent) to (i) to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower and (ii) visit and inspect
any of its properties and examine its corporate, financial and operating
records, once per fiscal year of the Borrower at such reasonable times during
normal business hours, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any of its representatives or independent contractors or any Lender (in the
case of such Lender, coordinated through the Administrative Agent) may do any
of the foregoing at the expense of the Borrower at any time during normal
business hours.


 


7.11        Use of Proceeds.


 


Use
the proceeds of the Term Loans to fund the IAC Dividend and pay costs and expenses
related to the Transactions (including entry into this Credit Agreement) and
use the proceeds of the Revolving Loans for working capital and general
corporate purposes (but in no event may any Revolving Loans fund any portion of
the IAC Dividend, the Spin-Off, any transaction contemplated by Section 8.12
or any of the other Transactions or any costs or expenses relating thereto)
(but, for the avoidance of doubt, proceeds of Revolving Loans may be used in
respect of obligations relating to such transactions after the  Spin-Off Date, including, for example, indemnification
obligations or obligations relating to transition services), in each case not
in contravention of any Law or of any Credit Document.


 


7.12        Joinder of Subsidiaries as Guarantors.


 


Promptly
notify the Administrative Agent of the formation, acquisition (or other receipt
of interests) or existence of any Domestic Subsidiary that is not a Guarantor
(other than, a non-Wholly Owned Subsidiary invested in pursuant to Section 8.02(k)
(unless such Subsidiary shall guarantee or provide Support Obligations in
respect of any material Indebtedness (other than the Obligations) of the
Borrower or another Subsidiary), or an Immaterial Subsidiary), which notice
shall include information as to the jurisdiction of organization, the number
and class of Capital Stock outstanding and ownership thereof (including
options, warrants, rights of conversion or purchase relating thereto), and with
respect to any such Subsidiary, within thirty (30) days, but in no event prior
to the Spin-Off Date (or up to ten (10) days later if the Administrative
Agent, in its sole discretion, shall agree thereto in writing) of the
formation, acquisition or other receipt of interests thereof, cause the joinder
of such Subsidiary as a Guarantor pursuant to Joinder Agreements (or such other
documentation in form and substance reasonably acceptable to the Administrative
Agent) accompanied by Organization Documents, take all actions necessary to
create and perfect a security interest in its assets to the extent required by
the Security Agreement or Pledge Agreement and, if reasonably requested by the
Administrative Agent, deliver favorable opinions of counsel to such Subsidiary,
in form and substance reasonably satisfactory to the Administrative Agent.  For the avoidance of doubt, if an Immaterial
Subsidiary shall become a Material Subsidiary, such Subsidiary shall thereupon
comply with the foregoing.


 


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7.13        Pledge of Capital Stock.


 


From
and after the Spin-Off Date, pledge or cause to be pledged to the Collateral
Agent to secure the Obligations, other than in the case of Excluded Property: (a) one
hundred percent (100%) of the issued and outstanding Capital Stock of each Domestic
Subsidiary to the extent owned by a Credit Party within thirty (30) days (or up
to ten (10) days later if the Administrative Agent, in its sole
discretion, shall agree thereto in writing) of its formation, acquisition or
other receipt of such interests and (b) Capital Stock representing
sixty-five percent (65%) (or if less, the full amount owned by such Subsidiary)
of each class of the issued and outstanding Capital Stock of each First-Tier
Foreign Subsidiary to the extent owned by a Credit Party within thirty (30)
days (or up to twenty (20) days later if the Administrative Agent, in its sole
discretion, shall agree thereto in writing) of its formation, acquisition or
other receipt of such interests, in each case pursuant to the Pledge Agreement
or pledge joinder agreements, together with, if reasonably requested by the
Administrative Agent, opinions of counsel and any filings and deliveries reasonably
requested by the Collateral Agent in connection therewith to perfect the
security interests therein, all in form and substance reasonably satisfactory
to the Administrative Agent; provided that the Borrower shall not be
required to deliver to the Collateral Agent opinions of foreign counsel or
foreign-law pledge agreements with respect to the pledge of Capital Stock of
any Foreign Subsidiary unless the Administrative Agent shall have reasonably
requested such foreign counsel opinions or foreign-law pledge agreements (it
being understood and agreed that the Administrative Agent shall not be entitled
to request such foreign counsel opinions or foreign-law pledge agreements or
the delivery of stock certificates with respect to any Subsidiary that, together
with its Subsidiaries, generated less than $2.0 million of Consolidated EBITDA
for the four quarter period ending on the last day of the most recently ended
fiscal quarter at the end of which financial statements were required to have
been delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements,
ending on the last day of the most recent period referred to in the first
sentence of Section 6.05)). 
It is further understood and agreed that even if such foreign counsel
opinions, foreign law security agreements or stock certificates with respect to
any Subsidiary shall not be required to be delivered to the Collateral Agent
pursuant to the foregoing, the Capital Stock thereof shall nevertheless
constitute Collateral, except to the extent constituting Excluded Property.


 


7.14        Pledge of Other Property.


 


With
respect to each Credit Party, pledge and grant a security interest in all of
its personal property, tangible and intangible, owned and leased (except (a) Excluded
Property, (b) as otherwise set forth in Section 7.13 with
respect to Capital Stock and (c) as otherwise set forth in the Collateral
Documents) to secure the Obligations, within thirty (30) days (or up to ten (10) days
later if the Administrative Agent, in its sole discretion, shall agree thereto
in writing) of the acquisition
or creation thereof pursuant to such pledge and security agreements, joinder
agreements or other documents as may be required, together with opinions of
counsel and any filings and deliveries reasonably requested by the Collateral
Agent in connection therewith to perfect the security interests therein, all in
form and substance reasonably satisfactory to the Administrative Agent.


 


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7.15        Further Assurances Regarding
Collateral.


 


(a)           Promptly upon request by the
Administrative Agent, or any Lender through the Administrative Agent, (a) correct
any material defect or error relating to the granting or perfection of security
interests that may be discovered in any Credit Document or in the execution, acknowledgment,
filing or recordation thereof, and (b) 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, or the Required Lenders through the Administrative Agent,
may reasonably require from time to time in order to (i) carry out more
effectively the purposes of the Credit Documents, (ii) to the fullest
extent permitted by applicable law, subject any Credit Party’s or any Credit
Party’s Subsidiaries’ properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (iv) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the holders of the Obligations the rights granted to the holders of the
Obligations under any Credit Document or under any other instrument executed in
connection with any Credit Document to which any Credit Party or any Credit
Party’s Subsidiaries is or is to be a party, and cause each of the Borrower’s
Subsidiaries to do so.


 


(b)           In the event the Borrower or any
other Credit Party acquires (i) a fee interest in any real property after
the Closing Date (excluding Excluded Property) and such real property (together
with any improvements thereon), when taken together with all contiguous parcels
of real property interests (or other parcels of real property interests
proximately located and used in connection therewith) then held by any Borrower
or any other Credit Party, has a fair market value of at least $2.5 million, or
(ii) a leasehold interest in any real property after the Closing Date
(excluding Excluded Property) and such leasehold interest, when taken together
with all contiguous parcels of real property interests (or other parcels of
real property interests proximately located and used in connection therewith)
then held by any Borrower or any other Credit Party shall have a fair market
value in excess of $3.5 million, the Borrower shall promptly (x) notify
the Administrative Agent of such acquisition and (y) deliver, or cause to
be delivered within sixty (60) days (or up to fifteen (15) days later if the
Administrative Agent, in its sole discretion, consents thereto in writing), to
the Collateral Agent a fully executed Mortgage (subject to all Permitted Liens)
over such real property in form and substance reasonably satisfactory to the
Administrative Agent, together with such Title Insurance Policies, Surveys,
appraisals (if required by law), “Life-of-Loan” flood hazard determinations,
evidence of insurance (including, without limitation, flood insurance if
required by Section 7.08(b)), legal opinions and other documents and
certificates, in each case, in form and substance reasonably satisfactory to
the Administrative Agent (or, in the case of the Mortgage, substantially in the
form of Exhibit 1.01D hereto), as shall be reasonably requested by the
Administrative Agent; provided that solely with respect to leasehold
mortgages as described in clause (ii), the Borrower (x) shall only be
required to use commercially reasonable efforts to obtain any such Mortgage and
related documentation and only to the extent requested by the Administrative
Agent and (y) shall not be required to make any economic concessions to
obtain any such Mortgage.


 


(c)           Notwithstanding
anything to the contrary provided herein or in any Credit Document, the
Borrower and the Subsidiaries shall not be required to take any action required
to perfect


 


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or maintain the perfection
of any of the Liens of the Agents or Lenders with respect to cash, deposit
accounts or securities accounts except to the extent such perfection is
achieved by filing of financing statements, although cash, deposit accounts and
securities accounts shall nevertheless constitute Collateral.


 


7.16        Post-Closing
Matters.


 


(a)           The
Borrower shall, no later than 3 Business Days after the Funding Date (or such
later date as the Administrative Agent, in its sole discretion, shall agree
to), provide to the Collateral Agent copies of insurance certificates or
policies with respect to all insurance required to be maintained pursuant to
the Credit Documents together with endorsements identifying the Collateral
Agent as additional insured or loss payee, with respect to all insurance
policies to be maintained with respect to the properties of the Borrower and
its subsidiaries forming any part of the Collateral.


 


(b)           The
Borrower shall, or shall cause the applicable Credit Party to, no later than
thirty (30) Business Days after the Funding Date (or up to ten (10) days
later if the Administrative Agent, in its sole discretion, shall agree thereto
in writing), provide the Collateral Agent, with respect to each Mortgaged Property:


 


(i)      a Survey certificated to Collateral Agent
and the Title Company;


 


(ii)     endorsements to Title Policy delivered to
the Collateral Agent insuring the Mortgage encumbering such Mortgaged Property,
paid for by the Borrower or the applicable Credit Party, (1) eliminating
the general or standard survey exceptions to the extent not previously
eliminated but reading in any other exceptions shown on the Survey, (2) providing
the comprehensive and survey endorsements thereto if request by the Collateral
Agent, as well as any other endorsements reasonably requested by the Collateral
Agent to the extent not previously provided which were omitted solely as a
result of the applicable Credit Party’s inability to obtain and deliver a
Survey contemporaneously with said Title Policy and (3) otherwise amending
the same so that the requirements set forth in clause (ii) of Section 5.02(d) are
satisfied; provided, in no event shall the Title Policy or associated
endorsements be required to endorse or eliminate exceptions that constitute
Permitted Liens; and


 


(iii)    an amendment (in form and substance
reasonably acceptable to the Collateral Agent) to the Mortgage and fixture
filing encumbering such Mortgaged Property amending the legal description
therein, if necessary in the reasonable judgment of the Collateral Agent in
light of the Survey delivered under this section (together with a modification
endorsement to the Title Policy delivered to the Collateral Agent insuring the
Mortgage encumbering such Mortgaged Property and opinions of local counsel with
respect thereto to the extent necessary in the reasonable judgment of the
Collateral Agent, in each case in form and substance reasonably acceptable to
the Collateral Agent).


 


(c)           With
respect to each Mortgaged Property, Borrower will use, and will cause each
applicable Credit Party to use, commercially reasonable efforts to obtain such
consents, estoppels, tenant subordination agreements or other instruments as
shall reasonably be deemed necessary


 


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by the Collateral Agent as soon as reasonably practicable.  No Credit Party shall be required to make any
economic concessions to obtain any such consents, estoppels, tenant
subordination agreements or other instruments.


 


(d)           With
respect to each location set forth on Schedule 7.16(d), Borrower
shall, or shall cause the applicable Credit Party to provide, a Landlord Access
Agreement as soon as reasonably practicable; provided
that (i) no such Landlord Access Agreement shall be required with respect
to any real property that has not been obtained after the Credit Party that is
the lessee of such real property shall have used commercially reasonable efforts
to do so and (ii) no Credit Party shall be required to make any economic
concessions to obtain any such Landlord Access Agreement.


 


7.17        FCC Licenses.


 


Cause each FCC License (other than two-way radio
licenses) required for the Borrower and its Subsidiaries to conduct their
businesses to be held by a License Subsidiary; provided, that, to the extent the same become Subsidiaries
hereafter, Ventana Television Holdings, Inc. and Ventana Television, Inc.
may conduct their operations in the ordinary course, consistent with past
practice and may retain any FCC License held by such entities as of the date
hereof and/or acquire future FCC Licenses of a similar nature or which are
ancillary to the operations of Ventana Television Holdings, Inc. or
Ventana Television, Inc.


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


Until
the Loan Obligations shall have been paid in full or otherwise satisfied, and
the Commitments hereunder shall have expired or been terminated, the Borrower
will not, and will not permit any of its Subsidiaries to:


 


8.01        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 created pursuant to the Credit
Documents;


 


(b)           Liens under the Collateral Documents
given to secure obligations under Swap Contracts between any Credit Party and
any Lender or Affiliate of a Lender or any Person that was a Lender or
Affiliate of a Lender at the time it entered into such Swap Contract, provided
that such Swap Contracts are otherwise permitted under Section 8.03;


 


(c)           Liens existing on the Closing Date
and listed on Schedule 8.01, or, to the extent not so listed, Liens,
which, when taken together with all other Liens existing on the Closing Date
and not so listed, secure Indebtedness in an aggregate principal amount not
exceeding $5.0 million, in each case together with any extensions,
replacements, modifications or renewals of the foregoing; provided that
the collateral interests are not broadened or increased or secure any Property
not secured by such Liens on the Closing Date


 


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(but shall be permitted to apply to after-acquired
property affixed or incorporated into the property covered by such Lien and the
proceeds and products of the foregoing);


 


(d)           Liens for taxes, assessments or
governmental charges or levies not yet due or to the extent non-payment thereof
is permitted under Section 7.05;


 


(e)           statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other
Liens imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and payable, are unfiled
and no other action has been taken to enforce the same, are not overdue by more
than 30 days, or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
subject to a foreclosure, sale or loss proceeding on account thereof (other
than a proceeding where foreclosure, sale or loss has been stayed));


 


(f)            Liens incurred or deposits made by
any member of the Consolidated Group in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


(g)           Liens in connection with attachments
or judgments (including judgment or appeal bonds) that do not result in an
Event of Default under Section 9.01(i);


 


(h)           easements, rights-of-way, covenants,
conditions, restrictions (including zoning restrictions), declarations, rights
of reverter (other than with respect to Mortgaged Property), minor defects or
irregularities in title and other similar charges or encumbrances, whether or
not of record, that do not, in the aggregate, interfere in any material respect
with the ordinary course of business of the Borrower or its Subsidiaries, or in
respect of any real property which is subject to a Mortgage, any title defects,
liens, charges or encumbrances (other than such prohibited monetary Liens)
which the Title Company is prepared to endorse or insure by exclusion or
affirmative endorsement reasonably acceptable to the Administrative Agent and
which is included in any Title Policy;


 


(i)            Liens on property of any Person
securing purchase money and Sale and Leaseback Transaction Indebtedness
(including capital leases and Synthetic Leases) of such Person, in each case to
the extent incurred under Section 8.03(c) (or any refinancing
of such Indebtedness incurred under Section 8.03(l)); provided,
that any such Lien attaches only to the Property financed or leased and such
Lien attaches prior to, at the time of or within one hundred eighty (180) days
after the later of the date of acquisition of such property or the date such
Property is placed in service (or, in the case of Liens securing a refinancing
of such Indebtedness pursuant to Section 8.03(l), any such Lien attaches
only to the Property that was so financed with the proceeds of the Indebtedness
so refinanced);


 


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(j)            licenses, sublicenses, leases or
subleases granted to others not interfering in any material respect with the
business of any member of the Consolidated Group;


 


(k)           any interest or title of a lessor or
sublessor under, and Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to,
leases and subleases permitted by this Credit Agreement;


 


(l)            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 and Liens deemed to exist in
connection with Investments in repurchase agreements that constitute
Investments permitted by Section 8.02 hereof;


 


(m)          normal and customary rights of setoff
upon deposits of cash or other Liens originating solely by virtue of any
statutory or common law provision relating to bankers liens, rights of setoff
or similar rights in favor of banks or other depository institutions not
securing Indebtedness;


 


(n)           Liens of a collection bank arising
under Section 4-210 of the Uniform Commercial Code on items in the course
of collection;


 


(o)           Liens on Property securing
obligations incurred under Section 8.03(h) (or any refinancing
of such obligations incurred under Section 8.03(l)); provided that
the Liens are not incurred in connection with, or in contemplation or
anticipation of, the acquisition and do not attach or extend to any Property
other than the Property so acquired (or, in the case of Liens securing a
refinancing of such obligations pursuant to Section 8.03(l), the Property
acquired with the proceeds of the obligations so refinanced);


 


(p)           Other Liens in an aggregate amount
not to exceed $30.0 million;


 


(q)           Liens in respect of any Indebtedness
incurred by a Foreign Subsidiary to the extent such Liens extend only to the
Property of the Foreign Subsidiary or Foreign Subsidiaries incurring such
Indebtedness;


 


(r)            pledges and deposits and other Liens
securing liability for reimbursement or indemnification obligations of
(including obligations in respect of bank guarantees for the benefit of)
insurance carriers providing property, casualty or liability insurance to the
Borrower or any Subsidiary;


 


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


 


(t)            Liens securing obligations incurred
pursuant to Section 8.03(n);


 


(u)           Liens on Capital Stock in joint
ventures securing obligations of such joint venture, to the extent required by
the terms of the organizational documents or material contracts of such joint
venture;


 


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(v)           Liens on goods or inventory the
purchase, shipment or storage price of which is financed by a bank guarantee or
bankers’ acceptance issued or created for the account of the Borrower or any
Subsidiary in the ordinary course of business so long as such Liens are extinguished
when such goods or inventory are delivered to the Borrower or a Subsidiary;
provided, that such Lien secures only the obligations of the Borrower or such
Subsidiaries in respect of such bankers’ acceptance or bank guarantee to the
extent permitted under Section 8.03;


 


(w)          Liens securing insurance premiums
financing arrangements, provided that such Liens are limited to the
applicable unearned insurance premiums; and


 


(x)            Liens in favor of the Borrower or
any Guarantor; provided that if any such Lien shall cover any Collateral, the
holder of such Lien shall execute and deliver to the Administrative Agent a
subordination agreement in form and substance reasonably satisfactory to the
Administrative Agent.


 


8.02        Investments.


 


Make or permit to exist any Investments, except:


 


(a)           cash and Cash Equivalents of or to be
owned by the Borrower or a Subsidiary;


 


(b)           Investments existing on, or
contractually committed as of, the Closing Date and set forth on Schedule 8.02
and any extensions, renewals or reinvestments thereof, so long as the aggregate
amount of any Investment pursuant to this clause (b) is not increased at
any time above the amount of such Investment existing on the Closing Date,
unless such increase is permitted by any clause of this Section 8.02
(other than by this clause (b)), in which case the capacity of such
other clause shall be reduced by such increase;


 


(c)           to the extent not prohibited by
applicable Law, advances to officers, directors and employees and consultants
of the Borrower and Subsidiaries made for travel, entertainment, relocation and
other ordinary business purposes in an aggregate amount not to exceed $5.0
million at any time outstanding or, to the extent not used as part of or to
increase the Cumulative Credit, in connection with such person’s purchase of
equity of the Borrower;


 


(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 to the extent reasonably necessary in order to prevent
or limit loss and any prepayments and other credits to suppliers, clients,
developers or purchasers or sellers of goods or services made in the ordinary
course of business;


 


(e)           except to the extent constituting an
Acquisition, Investments by the Borrower and Domestic Subsidiaries in Domestic
Credit Parties;


 


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(f)            [Reserved];


 


(g)           Investments by Foreign Subsidiaries
in any member of the Consolidated Group (including other Foreign Subsidiaries);


 


(h)           Support Obligations incurred pursuant
to Section 8.03;


 


(i)            Investments comprised of Permitted
Acquisitions;


 


(j)            [Reserved];


 


(k)           Investments at any time outstanding
in an aggregate amount not to exceed the greater of $40.0 million and 1.0% of
Consolidated Total Assets at such time plus, so long as (x) no Default
shall have occurred and be continuing or exist after giving effect thereto and (y) after
giving effect on a Pro Forma Basis to the Investment to be made, as of the last
day of the most recently ended fiscal quarter at the end of which financial
statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10, the amount of the Cumulative Credit
at such time; (and if the Investment is greater than $15.0 million, then the
Borrower shall deliver a certificate of a Responsible Officer as to the
satisfaction of the requirements in this clause (y)); provided that if any Investment
is made pursuant to this Section 8.02(k) in any Person that is
not a Domestic Credit Party and such Person thereafter becomes a Domestic
Credit Party, such Investment shall thereafter be deemed to have been made
pursuant to Section 8.02(e);


 


(l)            Investments representing non-cash
consideration received in connection with any Subject Disposition permitted
pursuant to Section 8.05;


 


(m)          Investments contemplated by Section 8.12;


 


(n)           Swap Contracts allowed by Section 8.03(d);


 


(o)           Investments resulting from pledges
and deposits under Section 8.01(f), (l) or (r);


 


(p)           Investments received in connection
with the bankruptcy or reorganization of, or settlement of delinquent accounts
and disputes with or judgments against, customers and suppliers, in each case
in the ordinary course of business or Investments acquired by the Borrower as a
result of a foreclosure by the Borrower or any of the Subsidiaries with respect
to any secured Investments or other transfer of title with respect to any secured
Investment in default;


 


(q)           loans or advances or other similar
transactions with customers, distributors, clients, developers, suppliers or
purchasers or sellers of goods or services, in each case, in the ordinary
course of business, regardless of frequency;


 


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(r)            to the extent not used as part of or
increasing the Cumulative Credit, any Investment procured solely in exchange
for the issuance of Qualified Capital Stock;


 


(s)           Investments to the extent consisting
of the redemption, purchase, repurchase or retirement of any common Capital
Stock permitted under Section 8.06;


 


(t)            advances in the form of a prepayment
of expenses, so long as such expenses are being paid in accordance with
customary trade terms of the Borrower or such Subsidiary;


 


(u)           Investments by Borrower and its
Subsidiaries if the Borrower or any other Subsidiary would otherwise be
permitted to make a Restricted Payment in such amount to such Person under Section 8.06(f) (provided
that the amount of any such Investment shall also be deemed to be a Restricted
Payment under such clause for all purposes of the Credit Documents);


 


(v)           guarantees by the Borrower or any
Subsidiary of operating leases or of other obligations that do not constitute
Indebtedness, in each case entered into by the Borrower or any Subsidiary in
the ordinary course of business;


 


(w)          Investments consisting of the
non-exclusive licensing of intellectual property pursuant to joint marketing
arrangements with other Persons otherwise permitted hereunder; and


 


(x)            Investments by the Borrower or any
Guarantor in any Foreign Subsidiary consisting solely of (x) the
contribution or other Disposition of Capital Stock or Indebtedness of any other
Foreign Subsidiary held directly by the Borrower or such Guarantor in exchange
for Indebtedness, Capital Stock (or additional share premium or paid in capital
in respect of Capital Stock) or a combination thereof of the Foreign Subsidiary
to which such contribution is made or (y) an exchange of Capital Stock of
such Foreign Subsidiary for Indebtedness of such Foreign Subsidiary.


 


8.03                        Indebtedness.


 


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


 


(a)           Indebtedness existing or arising
under this Credit Agreement and the other Credit Documents;


 


(b)           The Existing Letters of Credit and
Indebtedness (other than the Existing Letters of Credit) existing on the
Closing Date set forth on Schedule 8.03 or, to the extent not listed on Schedule 8.03,
the aggregate principal amount of which, when taken with all other Indebtedness
existing on the Closing Date and not so listed, does not exceed $5.0 million;


 


(c)           capital lease obligations and
purchase money Indebtedness (including obligations in respect of capital
leases) to finance the purchase or acquisition of fixed assets, at any time
outstanding (when aggregated with the aggregate amount of refinancing


 


105

















 


Indebtedness outstanding at such time pursuant to Section 8.03(l) in
respect of Indebtedness incurred pursuant to this Section 8.03(c))
not to exceed the greater of $40.0 million and 1.0% of Consolidated Total
Assets; provided that such Indebtedness when incurred shall not exceed
the purchase price of the asset(s) financed;


 


(d)           obligations under Swap Contracts
entered into to manage existing or anticipated risks and not for speculative
purposes;


 


(e)           unsecured intercompany Indebtedness
among members of the Consolidated Group to the extent permitted by Section 8.02(e),
(g) or (x);


 


(f)            unsecured Indebtedness of the
Borrower to the extent (i) no Default or Event of Default has occurred and
is continuing or would result from the incurrence thereof at such time; (ii) after
giving pro forma effect to the incurrence of such Indebtedness, as of the last
day of the most recently ended fiscal quarter at the end of which financial
statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10 (and if the Indebtedness incurred is
greater than $15.0 million, then the Borrower shall deliver a certificate of a
Responsible Officer as to the satisfaction of the requirements in this clause
(ii)); (iii) such Indebtedness matures no earlier than the Term Loans and
has a Weighted Average Life to Maturity that is no shorter than the Term Loans;
(iv) such Indebtedness does not have prepayment or redemption events that
are less favorable to the Borrower and its Subsidiaries than those relating to
the Term Loans; and (v) such Indebtedness has other terms that are, taken
as a whole, not materially less favorable to the Borrower and its Subsidiaries
than the terms of the Credit Agreement; provided that such Indebtedness
may benefit from unsecured guarantees from the Guarantors on the same basis as
the Borrower has issued such Indebtedness;


 


(g)           [Reserved];


 


(h)           Indebtedness acquired or assumed
pursuant to a Permitted Acquisition in an aggregate principal amount at any
time outstanding (when aggregated with the aggregate amount of refinancing
Indebtedness outstanding at such time pursuant to Section 8.03(l) in
respect of Indebtedness incurred pursuant to this Section 8.03(h))
not to exceed $25.0 million; provided that (a) such Indebtedness
was not incurred in connection with, or in anticipation or contemplation of,
such Permitted Acquisition and (b) after giving pro forma effect to the
incurrence of such Indebtedness, as of the last day of the most recently ended
fiscal quarter at the end of which financial statements were required to have
been delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements, as of
the last day of the most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10;


 


(i)            Indebtedness arising under any
performance or surety bond, completion bond or similar obligation entered into
in the ordinary course of business consistent with past practice;


 


106

















 


(j)            Indebtedness of the Borrower and its
Subsidiaries (and guarantees thereof, without duplication) not contemplated in
the foregoing clauses of this Section 8.03 in an aggregate
principal amount at any time outstanding not to exceed the greater of $40.0
million and 1.0% of Consolidated Total Assets at such time;


 


(k)           Indebtedness incurred under the Senior
Notes and guarantees by the Guarantors thereof;


 


(l)            any refinancing of Indebtedness
incurred pursuant to Section 8.03(b), (c), (f), (h) or
(k) so long as (i) if the Indebtedness being refinanced is
Subordinated Debt, then such refinancing Indebtedness shall be at least as
subordinated in right of payment and otherwise to the Obligations as the
Indebtedness being refinanced, (ii) the principal amount of the
refinancing Indebtedness is not greater than the principal amount of the Indebtedness
being refinanced, together with any premium paid, and accrued interest and
reasonable fees in connection therewith thereon and reasonable costs and
expenses incurred in connection therewith, (iii) the final maturity and
Weighted Average Life to Maturity of the refinancing Indebtedness is not
earlier or shorter, as the case may be, than the Indebtedness being refinanced,
(iv) no Subsidiary (other than a Credit Party) that is not an obligor with
respect the Indebtedness to be refinanced shall be an obligor with respect to
the refinancing Indebtedness and (v) the material terms (other than as to
interest rate, which shall be on then market terms) of the refinancing
Indebtedness taken as a whole are at least as favorable to the Consolidated
Group and the Lenders as under the Indebtedness being refinanced;


 


(m)          overdrafts paid within 5 Business
Days;


 


(n)           Indebtedness in respect of trade
letters of credit, warehouse receipts or similar instruments issued to support
performance obligations (other than obligations in respect of Indebtedness) in
the ordinary course of business; provided that the aggregate stated
amount of any such trade letters of credit, warehouse receipts or similar instruments
shall not exceed, as of the date of issuance, amendment or extension thereof,
$75.0 million minus the aggregate L/C Obligations outstanding on such date; provided further
that Indebtedness in respect of any such trade letter of credit may not be
incurred pursuant to this Section 8.03(n) unless (x) such trade
letter of credit is not denominated in an Approved Currency and (y) such
trade letter of credit is either (A) issued in and utilized with respect
to a jurisdiction in which no L/C Issuer has any obligation to provide Letters
of Credit pursuant to application of Section 2.03(a)(ii)(A) or
(B) or (B) issued under circumstances in which no L/C Issuer
is otherwise able to provide a reasonably satisfactory Letter of Credit;


 


(o)           Indebtedness supported by a Letter of
Credit, in a principal amount not in excess of the stated amount of such Letter
of Credit;


 


(p)           Indebtedness consisting of (i) the
financing of insurance premiums or (ii) take or pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


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(q)           Indebtedness representing deferred
compensation to employees of the Borrower or any Subsidiary incurred in the
ordinary course of business;


 


(r)            [Reserved];


 


(s)           Indebtedness consisting of
obligations of the Borrower or any Subsidiary under deferred compensation,
indemnification, adjustment of purchase or acquisition price or other similar
arrangements incurred by such Person in connection with the Transactions and Permitted
Acquisitions or any other Investment expressly permitted hereunder;


 


(t)            all premium (if any), interest
(including post petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in paragraphs (a) through (s) above;
and


 


(u)           Support Obligations by any member of
the Consolidated Group in respect of Indebtedness incurred under subsections (a) through
(t) of this Section 8.03, solely to the extent such member of
the Consolidated Group would have itself been able to originally incur such
Indebtedness.


 


8.04                        Mergers
and Dissolutions.


 


(a)           Enter
into a transaction of merger or consolidation, except that:


 


(i)            a Domestic Subsidiary of the
Borrower may be a party to a transaction of merger or consolidation with the
Borrower or another Domestic Subsidiary of the Borrower; provided that
if the Borrower is a party to such transaction, the Borrower shall be the
surviving Person; provided, further that if the Borrower is not a
party to such transaction but a Guarantor is, such Guarantor shall be the
surviving Person or the surviving Person shall become a Guarantor immediately
upon the consummation of such transaction;


 


(ii)           a Foreign Subsidiary may be party to
a transaction of merger or consolidation with the Borrower or a Subsidiary of
the Borrower; provided that (A) if the Borrower is a party thereto,
it shall be the surviving entity, (B) if a Guarantor is a party thereto,
it shall be the surviving Person or the surviving Person shall become a
Guarantor immediately following the consummation of such transaction, and (C) if
a Foreign Subsidiary is a party thereto and a Domestic Subsidiary is not a
party thereto, the surviving entity shall be a Foreign Subsidiary and the
Borrower and its Subsidiaries shall be in compliance with the requirements of Section 7.13;


 


(iii)          a Subsidiary may enter into a transaction
of merger or consolidation in connection with a Subject Disposition effected
pursuant to Section 8.05, so long as no more assets are Disposed of
as a result of or in connection with any transaction undertaken pursuant to
this clause (iii) than would otherwise have been allowed pursuant to Section 8.05;


 


(iv)          mergers and consolidations
contemplated by Section 8.12 shall be permitted; and


 


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(v)           the Borrower or any
Subsidiary may merge with any other Person in connection with an Investment
permitted pursuant to Section 8.02 so long as the continuing or surviving
Person shall be a Subsidiary, which shall be a Guarantor if the merging Subsidiary
was a Guarantor and which together with each of its Subsidiaries shall have complied
with the requirements of Section 7.12; provided, that
following any such merger or consolidation involving the Borrower, the Borrower
is the surviving Person.


 


(b)           Except in connection with a
transaction permitted by Section 8.04(a)(i), the Borrower will not
dissolve, liquidate or wind up its affairs.


 


8.05                        Dispositions.


 


Make
any Subject Disposition or Specified Intercompany Transfer, unless (i) in
the case of a Subject Disposition only, at least seventy-five percent (75%) of
the consideration received from each such Subject Disposition is cash or Cash
Equivalents, (ii) such Subject Disposition or Specified Intercompany
Transfer is made at fair market value and (iii) the aggregate amount of
Property so Disposed (valued at fair market value thereof) in all Subject
Dispositions and Specified Intercompany Transfers in any fiscal year of the
Borrower does not exceed $75.0 million; provided that any amount not
used in any such fiscal year may be carried forward and used in the two immediately
succeeding fiscal years of the Borrower (but no other fiscal years).


 


8.06                        Restricted
Payments.


 


Declare or make, directly or indirectly, any
Restricted Payment, except that:


 


(a)           each Subsidiary may make Restricted
Payments to the Borrower or any Wholly Owned Subsidiary, or in the case of a
Subsidiary that is not a Wholly Owned Subsidiary, to each equity holder of such
Subsidiary on a pro rata basis (or on more favorable terms from the perspective
of the Borrower and its Wholly Owned Subsidiaries), based on their relative
ownership interests or, solely to the extent required by law and involving de
minimis amounts, on a non-pro rata basis to such equity holders;


 


(b)           Restricted Payments contemplated by Section 8.12
shall be permitted.


 


(c)           any refinancing permitted pursuant to
Section 8.03(l) shall be permitted;


 


(d)           [Reserved];


 


(e)           the Borrower may declare and make
payments in respect of the IAC Dividend on or about the Funding Date;


 


(f)            the Borrower may make Restricted
Payments at any time in an aggregate amount not to exceed the greater of $40.0
million and 1.0% of Consolidated Total Assets plus if (i) as of the
last day of the most recently ended fiscal quarter at the end of which
financial statements were required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), (x) the Borrower would
be in compliance with Section 8.10 and (y) the Consolidated
Total 


 


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Leverage Ratio would not be in excess of 2.25:1.00
(and if the Restricted Payment is greater than $15.0 million, then the Borrower
shall deliver a certificate of a Responsible Officer as to the satisfaction of
the requirements in this clause (i))and (ii) no Default shall have
occurred and be continuing or exist after giving effect thereto, the amount of
the Cumulative Credit at such time;


 


(g)           the Borrower may make payments or
prepayments of principal on, or redemptions, repurchases or acquisitions for
value of, its Indebtedness (other than Subordinated Indebtedness) that is not
secured by a Lien (x) in an aggregate principal amount for all such payments,
prepayments, redemptions, repurchases and acquisitions not to exceed $50.0 million
or (y) at any time following the date that no Term Loans or Incremental
Term Loans are outstanding;


 


(h)           to the extent not used as part of or
increasing the Cumulative Credit, the Borrower may purchase, redeem or
otherwise acquire shares of its common Capital Stock with the proceeds received
from the substantially concurrent issue of new shares of its common Capital
Stock;


 


(i)            the members of the Consolidated
Group may prepay or repay intercompany Indebtedness otherwise permitted
hereunder owed to other members of the Consolidated Group; and


 


(j)            repurchases of Capital Stock deemed
to occur upon the “cashless exercise” of stock options or warrants or upon the
vesting of restricted stock units if such Capital Stock represents the exercise
price of such options or warrants or represents withholding taxes due upon such
exercise or vesting.


 


8.07                        Change
in Nature of Business.


 


Engage
in any material line of business other than a Permitted Business.


 


8.08                        Change
in Accounting Practices or Fiscal Year.


 


Change
its (a) accounting policies or reporting practices, except as required by
GAAP, or (b) fiscal year of the Borrower or any Subsidiary, in each case
without prior written notice to the Administrative Agent and the Lenders.


 


8.09                        Transactions
with Affiliates.


 


Enter
into any transaction of any kind with any Affiliate of the Borrower (other than
between or among (x) the Borrower and/or one or more Guarantors or (y) one
or more Subsidiaries of the Borrower that are not Guarantors), whether or not
in the ordinary course of business, other than (i) on fair and reasonable
terms substantially as favorable in all material respects to the Borrower or
the applicable Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s-length transaction with a Person
other than an Affiliate, (ii) Restricted Payments permitted by Section 8.06
(other than Section 8.06(c)), (iii) Investments permitted by Section 8.02
(c), (g), (u) or (x) or, to the extent that
such transaction is with a Person that becomes an Affiliate of the Borrower or
a Subsidiary solely as a result of such transaction,


 


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any transaction pursuant to Section 8.02(i) or
(k) and (iv) transactions contemplated by Section 8.12
shall be permitted.


 


8.10                        Financial
Covenants.


 


(a)           Consolidated
Total Leverage Ratio.  Permit the
Consolidated Total Leverage Ratio as of the last day of any fiscal quarter to
be greater than 2.75:1.00.


 


(b)           Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio as of the last day of any fiscal quarter
to be less than 3.00:1.00.


 


8.11                        Limitation
on Subsidiary Distributions.


 


Directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary, or pay any Indebtedness owed to the Borrower or a Subsidiary, (b) make
loans or advances to the Borrower or any Subsidiary or (c) transfer any of
its properties to the Borrower or any Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) applicable Law; (ii) this
Credit Agreement and the other Credit Documents; (iii) the Senior Notes; (iv) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of a Subsidiary; (v) customary provisions restricting
assignment of any agreement entered into by a Subsidiary in the ordinary course
of business; (vi) any holder of a Lien permitted by Section 8.01
restricting the transfer of the property subject thereto; (vii) customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 8.05 pending the consummation
of such sale; (viii) without affecting the Credit Parties’ obligations
under Sections 7.12, 7.13 or 7.14, customary provisions in
partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other similar agreements
entered into in the ordinary course of business that restrict the transfer of
ownership interests in such partnership, limited liability company or similar
person; (ix) restrictions on cash or other deposits or net worth imposed
by suppliers or landlords under contracts entered into in the ordinary course
of business; (x) any instrument governing Indebtedness assumed in
connection with any Permitted Acquisition pursuant to Section 8.03(h),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties or
assets of the Person so acquired; (xi) in the case of any Subsidiary that is
not a Wholly Owned Subsidiary in respect of any matters referred to in clauses
(b) and (c) above, restrictions in such person’s Organization Documents
or pursuant to any joint venture agreement or stockholders agreements solely to
the extent of the Capital Stock of or property held in the subject joint
venture or other entity; (xii) contractual encumbrances or restrictions in effect
on the Closing Date under Indebtedness existing on the Closing Date and set
forth on Schedule 8.03, (xiii) any restrictions imposed by any
agreement relating to Indebtedness incurred pursuant to Section 8.03(f) to
the extent such restrictions are not more restrictive, taken as a whole, than
the restrictions contained in the Senior Notes as in effect on the Closing
Date; (xiii) customary net worth provisions contained in real property leases
entered into by the Borrower or any Subsidiary, so long as the Borrower has determined
in good faith that such net worth provisions would not reasonably be expected
to impair the ability of the Borrower and its Subsidiaries to meet their
ongoing obligations; (xiv) any 


 


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agreement in effect at the time any Person becomes a
Subsidiary, so long as such agreement was not entered into in contemplation of
such Person becoming a Subsidiary, (xv) restrictions in agreements representing
Indebtedness permitted under Section 8.03 of a Subsidiary of the Borrower
that is not a Guarantor; (xvi) restrictions on cash or other deposits imposed
by customers under contracts entered into in the ordinary course of business;
and (xvii) any encumbrances or restrictions imposed by any refinancings
that are otherwise permitted by the Credit Documents of the contracts,
instruments or obligations referred to above; provided that such refinancings are no more materially
restrictive with respect to such encumbrances and restrictions than those prior
to such amendment or refinancing.


 


8.12                        Spin-Off.


 


Notwithstanding
anything to the contrary provided herein or any Credit Document, nothing in
this Credit Agreement shall prohibit the Spin-Off and any transaction
undertaken in connection therewith (including the conversion of the Borrower or
any of its Subsidiaries to a limited liability company in the country of its
organization, Restricted Payments or intercompany transfers of cash,
Subsidiaries or other assets among the Borrower and its Subsidiaries and to IAC
or any of its Subsidiaries, purchases of assets from IAC or any of its
Subsidiaries, and payments of intercompany payables among the Borrower and its
Subsidiaries or to IAC or any of its Subsidiaries (including “true-up” payments
to IAC or any of its Subsidiaries subsequent to completion of the Spin-Off),
whether in the ordinary course of business or in preparation for the Spin-Off
or otherwise in connection therewith), in each case to the extent contemplated
by the Separation Agreement. For the avoidance of doubt, but not in derogation
of the requirements of the previous sentence, any Restricted Payments made or
transactions with any Affiliate of the Borrower entered into in the ordinary
course of business consistent with past practice between the Closing Date and
the Spin-Off Date shall not be prohibited by the terms of this Credit Agreement.


 


8.13                        Transfers/Investments
with Respect to Certain Subsidiaries.


 


Make or permit any Disposition of Property to, or any
Investment in, any Guarantor (other than de minimis Property or Investments) in
respect of which no opinion referred to in Section 5.02(f) has
been delivered to the Administrative Agent, unless and until an opinion with
respect to such Guarantor has been so delivered (it being understood that the
only Guarantors in respect of which no such opinion may be delivered on the
Funding Date shall be Guarantors that meet the requirements of the definition
of Immaterial Subsidiary, without giving effect to the proviso to such
definition).


 


ARTICLE IX


 


EVENTS OF DEFAULT AND
REMEDIES


 


9.01                        Events
of Default.


 


Any of the following shall constitute an Event of
Default:


 


(a)           Non-Payment.  The Borrower or any other Credit Party fails
to pay (i) when and as required to be paid herein, any amount of principal
of any Loan or any 


 


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L/C Obligation, or (ii) within three (3) Business
Days after the same becomes due, any interest on any Loan or any regularly
accruing fee due hereunder or any other amount payable hereunder or under any
other Credit Document; or


 


(b)           Specific Covenants.  The Borrower or any other Credit Party fails
to perform or observe any term, covenant or agreement contained in any of Section 7.03(a),
7.11 or Article VIII or, with respect to the existence of
the Borrower only, Section 7.04; or


 


(c)           Other Defaults.  The Borrower or any other Credit Party fails
to perform or observe any other covenant or agreement (not specified in subsections
(a) or (b) above) contained in any Credit Document on its
part to be performed or observed and such failure continues for thirty (30)
calendar days after written notice to the defaulting party or the Borrower by
the Administrative Agent or the Required Lenders; or


 


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


 


(e)           Cross-Default.  (i) Any member of the Consolidated Group
(A) fails (beyond the period of grace (if any) provided in the instrument
or agreement pursuant to which such Indebtedness was created) to make any
payment when due (whether by scheduled maturity, interest, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Support
Obligations (other than Indebtedness hereunder or Indebtedness under Swap
Contracts) having a principal amount (with principal amount for the purposes of
this clause (e) including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement), when taken together with the principal amount of all other
Indebtedness and Support Obligations as to which any such failure has occurred,
exceeding $25.0 million or (B) fails to observe or perform any other
agreement or condition relating to any Indebtedness or Support Obligations or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which failure or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Support Obligations (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to
become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Support
Obligations to become payable or cash collateral in respect thereof to be demanded,
which has an unpaid principal amount, when taken together with the unpaid
principal amounts of all other Indebtedness and Support Obligations as to which
any such failure or event has occurred, exceeding $25.0 million; or (ii) there
occurs under any Swap Contract an “early termination date” (or term of similar
import) resulting from (A) any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the “defaulting party” (or term
of similar import) or (B) any “termination event” (or 


 


113

















 


term of similar import) under such Swap Contract as to
which the Borrower or any Subsidiary is an “affected party” (or term of similar
import) and, when taken together with all other Swap Contracts as to which
events of default or events referred to in the immediately preceding clauses
(A) or (B) are applicable, the Swap Termination Value owed
by the Borrower and its Subsidiaries exceeds $25.0 million; or


 


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


 


(g)           Change of Control.  There shall have occurred a Change of Control
of the Borrower; or


 


(h)           Inability to Pay Debts; Attachment.  The Borrower, any Guarantor or any
Significant Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process issued or levied against
all or any material part of the property of any such Person and is not
released, vacated or fully bonded within thirty (30) days after its issue or
levy; or


 


(i)            Judgments.  There is entered against any member of the
Consolidated Group one or more final judgments or orders for the payment of
money in an aggregate amount (as to all such judgments and orders) exceeding
$25.0 million (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage or otherwise discharged), and
there is a period of 30 consecutive days during which a stay of enforcement of
such judgments, by reason of a pending appeal or otherwise, is not in effect;
or


 


(j)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan that has resulted or would reasonably
be expected to result in liability of a Credit Party under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $25.0 million, or (ii) a Credit Party fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount in excess of $25.0 million; or


 


(k)           Invalidity of Credit Documents.  Any Credit Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any 


 


114

















 


Credit Party contests in any manner the validity or
enforceability of any Credit Document; or any Credit Party denies that it has
any or further liability or obligation under any Credit Document, or purports
to revoke, terminate or rescind any Credit Document; or


 


(l)            Collateral Documents.  Any Collateral Document after delivery
thereof pursuant to Section 5.02, 7.13, 7.14 or 7.15
shall for any reason cease to create a valid and perfected first priority Lien
to the extent required by the Collateral Documents (subject to Liens permitted
by Section 8.01) on Collateral that is (i) purported to be
covered thereby and (ii) comprises Property which, when taken together
with all Property as to which such a Lien has so ceased to be effective, has a
fair market value in excess of $7.5 million (other than by reason of (x) the
express release thereof pursuant to Section 10.10, (y) the
failure of the Collateral Agent to retain possession of Collateral physically
delivered to it or (z) the failure of the Collateral Agent to timely file
Uniform Commercial Code continuation statements).


 


9.02                        Remedies
upon Event of Default.


 


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


 


(a)           declare the Commitments of the
Lenders and the obligation of each L/C Issuer to make L/C Credit Extensions to
be terminated, whereupon such Commitments and obligation shall be terminated;


 


(b)           declare the unpaid principal amount
of all outstanding Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any other Credit 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 or to the Lenders under the
Credit Documents or applicable Law;


 


provided, however, that upon
the occurrence of an Event of Default under Section 9.01(f) or
(h), the obligation of each Lender to make Loans and any obligation of
each L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the 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.


 


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9.03                        Application
of Funds.


 


After
the exercise of remedies provided for in Section 9.02 (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 9.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:


 


First, to payment of that portion of
the Obligations constituting fees, indemnities, expenses and other amounts
(including all reasonable fees, expenses and disbursements of any law firm or
other counsel and amounts payable under Article III) payable to the
Administrative Agent and the Collateral Agent, in each case in its capacity as
such;


 


Second, to payment of that portion
of the Obligations constituting fees, indemnities and other amounts (other than
principal, interest, Facility Fees, Commitment Fees and Letter of Credit Fees)
payable to the Lenders (including all reasonable fees, expenses and
disbursements of any law firm or other counsel and amounts payable under Article III),
ratably among the Lenders in proportion to the respective amounts described in
this clause Second payable to them;


 


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


 


Fourth, to (a) payment of that
portion of the Obligations constituting unpaid principal of the Loans and L/C
Borrowings, (b) payment of breakage, termination or other amounts owing in
respect of any Swap Contract between any Credit Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted hereunder,
(c) payments of amounts due under any Treasury Management Agreement between
any Credit Party and any Lender, or any Affiliate of a Lender and (d) the
Administrative Agent for the account of each L/C Issuer, to Cash Collateralize
that portion of the L/C Obligations comprised of the aggregate undrawn amount
of Letters of Credit, ratably among such parties in proportion to the
respective amounts described in this clause Fourth payable to them; 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
Fourth above shall be applied to satisfy drawings under such Letters of
Credit as they occur.  If any amount
remains on deposit as cash collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the
other Obligations, if any, in the order set forth above.


 


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ARTICLE X


 


AGENTS


 


10.01                 Appointment
and Authorization of Administrative Agent and Collateral Agent.


 


(a)           Each
of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent and Collateral Agent hereunder
and under the other Credit Documents and authorizes each of the Administrative
Agent and Collateral Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent or the Collateral
Agent, as the case may be, by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Collateral Agent, the
Lenders and the L/C Issuers, and neither the Borrower nor any other Credit
Party shall have rights as a third party beneficiary of any of such provisions.


 


(b)           Each
Lender hereby irrevocably appoints, designates and authorizes the Collateral
Agent to take such action on its behalf under the provisions of this Credit
Agreement and each Collateral Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Credit
Agreement or any Collateral Document, together with such powers as are
reasonably incidental thereto.  In this
connection, the Collateral Agent, and any co-agents, sub-agents and
attorneys-in-fact appointed by the Collateral Agent pursuant to Section 10.05
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 Collateral Agent), shall be
entitled to the benefits of all provisions of this Article X and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Credit Documents)
as if set forth in full herein with respect thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any Collateral Document, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein or therein, nor shall
the Administrative Agent or the Collateral 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 Credit Agreement or any Collateral Document or
otherwise exist against the Administrative Agent or the Collateral Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the Collateral
Documents with reference to the Administrative Agent or the Collateral 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.  The Collateral Agent shall act on behalf of
the Lenders with respect to any Collateral and the Collateral Documents, and
the Collateral Agent shall have all of the benefits and immunities (i) provided
to the Administrative Agent under the Credit Documents with respect to any acts
taken or omissions suffered by the Collateral Agent in connection with any
Collateral or the Collateral Documents as fully as if the term “Administrative
Agent” as used in such Credit Documents included the Collateral Agent with
respect to such acts or omissions, and (ii) as additionally provided
herein or in the Collateral Documents with respect to the Collateral Agent.


 


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(c)           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 such L/C Issuer
shall have all of the benefits and immunities (i) provided to the
Administrative Agent and Collateral Agent in this Article X 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 Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” or “Collateral Agent” as used in this Article X
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.


 


10.02                 Rights as a
Lender.


 


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


 


10.03                 Exculpatory
Provisions.


 


The Agents shall not have any duties or obligations
except those expressly set forth herein and in the other Credit Documents.  Without limiting the generality of the
foregoing, the Agents:


 


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


 


(b)           shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Credit
Documents that the Agents are required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Credit Documents), provided
that no Agent shall be required to take any action that, in its opinion or the
opinion of its counsel, may expose such Agent to liability or that is contrary
to any Credit Document or applicable law; and


 


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


 


Neither
the Administrative Agent nor the Collateral Agent shall be liable for any
action taken or not taken by it (i) with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as such Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02)



 


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or (ii) in the absence of its own gross
negligence or willful misconduct.  The
Administrative Agent and the Collateral Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is
given to such Agent by the Borrower, a Lender or an L/C Issuer.


 


No
Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Credit
Agreement or any other Credit Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Credit Agreement, any
other Credit Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral
or (vi) the satisfaction of any condition set forth in Article V
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to such Agent.


 


10.04                 Reliance by
Administrative Agent and Collateral Agent.


 


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


 


10.05                 Delegation of
Duties.


 


The
Administrative Agent and the Collateral Agent may perform any and all of their
duties and exercise their rights and powers hereunder or under any other Credit
Document by or through any one or more sub-agents appointed by the
Administrative Agent or Collateral Agent, as the case may be.  The Administrative Agent, Collateral Agent
and any such sub-agent may perform any and all of their duties and exercise
their rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent, the Collateral Agent, and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the 


 


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credit facilities provided for herein as well as
activities as Administrative Agent or Collateral Agent, as the case may be.


 


10.06                 Resignation of
the Administrative Agent or the Collateral Agent.


 


Each
of the Administrative Agent and the Collateral Agent may at any time give
notice of its resignation to the Lenders, each L/C Issuer and the
Borrower.  Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the consent of
the Borrower (provided, no consent shall be required if an Event of
Default has occurred and is continuing), to appoint a successor, which shall be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States.  If
no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may on behalf of the
Lenders and the L/C Issuers, with the consent of the Borrower (provided,
no consent shall be required if an Event of Default has occurred and is
continuing), appoint a successor Administrative Agent or Collateral Agent, as
the case may be, meeting the qualifications set forth above; provided
that if the Administrative Agent or Collateral Agent, as the case may be, shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Credit Documents
(except that in the case of any collateral security held by the Administrative
Agent or Collateral Agent, as the case may be, on behalf of the Lenders or the
L/C Issuers under any of the Credit Documents, such retiring Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent or Collateral Agent, as the case may be, is appointed) and
(2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent or Collateral Agent, as the case may
be, shall instead be made by or to each Lender and each L/C Issuer directly,
until such time as the Required Lenders appoint a successor Administrative
Agent or Collateral Agent, as the case may be, as provided for above in this
Section.  Upon the acceptance of a
successor’s appointment as Administrative Agent or Collateral Agent, as the
case may be, hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent or Collateral Agent, as the case may be, and the retiring
Administrative Agent or Collateral Agent, as the case may be, shall be
discharged from all of its duties and obligations hereunder or under the other
Credit Documents (if not already discharged therefrom as provided above in this
Section).  The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Agent’s resignation
hereunder and under the other Credit Documents, the provisions of this Article and
Section 11.04 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring
Agent was acting as Administrative Agent or Collateral Agent, as the case may
be.


 


Any
resignation by Bank of America as Administrative Agent or Collateral Agent, as
the case may be, pursuant to this Section shall also constitute its
resignation as L/C Issuer and Swingline Lender. 
Upon the acceptance of a successor’s appointment as Administrative Agent
or Collateral Agent, as the case may be, hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer and


 


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Swingline Lender, (b) the retiring L/C Issuer and
Swingline Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Credit Documents, and (c) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.


 


10.07                 Non-Reliance
on Administrative Agent, Collateral Agent and Other Lenders.


 


Each
Lender and each L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent, Collateral Agent, or any other Lender
or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Credit Agreement.  Each Lender
and each L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent, Collateral Agent or any other Lender or
any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Credit Agreement, any
other Credit Document or any related agreement or any document furnished
hereunder or thereunder.


 


10.08                 No Other
Duties.


 


Anything
herein to the contrary notwithstanding, none of the “Syndication Agent,” “Co-Documentation
Agents,” “Co-Lead Arrangers” and “Co-Book Managers” listed on the cover page hereof
shall have any powers, duties or responsibilities under this Credit Agreement
or any of the other Credit Documents, except in its capacity, as applicable, as
the Administrative Agent, the Collateral Agent, a Lender or an L/C Issuer
hereunder.


 


10.09                 Administrative
Agent or Collateral 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 Credit Party, the Administrative Agent or Collateral
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 (other than obligations under
Swap Contracts or Treasury Management Agreements to which the Administrative Agent
or the Collateral Agent is not a party) that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuers, the Collateral Agent and the Administrative
Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuers, the Collateral Agent and the Administrative
Agent and their respective agents and counsel and all other amounts due the 


 


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Lenders, the L/C Issuers, the Collateral Agent and the
Administrative Agent under Sections 2.09 and 11.04) 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 and each L/C Issuer to make such payments to
the Administrative Agent or the Collateral Agent, as the case may be, and, in
the event that such Agent shall consent to the making of such payments directly
to the Lenders and each L/C Issuer, to pay to the Administrative Agent or the Collateral
Agent, as the case may be, any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent or the
Collateral Agent, as the case may be, and its agents and counsel, and any other
amounts due to such Agent under Sections 2.09 and 11.04.


 


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


 


10.10                 Collateral and
Guaranty Matters.


 


The
Lenders and each L/C Issuer irrevocably authorize the Administrative Agent and
the Collateral Agent, at its option and in its discretion:


 


(a)           to release any Guarantor from its
obligations under the Collateral Documents if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder, or if the
conditions set forth in clause (b)(i) below are satisfied;


 


(b)           to release any Lien on any property
granted to or held by the Collateral Agent under any Credit Document (i) upon
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (A) contingent indemnification obligations not then due and
payable, (B) obligations and liabilities under Swap Contracts and Treasury
Management Agreements not then due and payable) and the expiration or termination
of all Letters of Credit (or if any Letters of Credit shall remain outstanding,
upon (x) the cash collateralization of the Outstanding Amount of Letters
of Credit on terms satisfactory to the Administrative Agent and the applicable
L/C Issuer (if other than the Administrative Agent) or (y) the receipt by
the applicable L/C Issuer of a backstop letter of credit on terms satisfactory
to the Administrative Agent and the applicable L/C Issuer (if other than the
Administrative Agent)), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Credit Document
(other than any such sale to another Credit Party), or (iii) subject to Section 11.01,
if approved, authorized or ratified in writing by the Required Lenders; and


 


(c)           to subordinate any Lien on any
property granted to or held by the Collateral Agent under any Credit Document
to the holder of any Lien on such property that is permitted by Section 8.01(i).


 


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Upon
request by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the authority of the Collateral Agent to
release or subordinate its interest in particular property and of the
Administrative Agent to release any Guarantor from its obligations hereunder
pursuant to this Section 10.10.


 


10.11                 Withholding
Tax.


 


To the
extent required by any applicable law, the Administrative Agent may withhold
from any payment to any Lender any applicable Tax.  If the IRS or any other authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender for any reason (including, without limitation, because the
appropriate form was not delivered or not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstance
that rendered the exemption from, or reduction of withholding tax ineffective),
such Lender shall indemnify and hold harmless the Administrative Agent for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or
otherwise, including any interest, additions to tax or penalties thereto, together
with all expenses incurred, including legal expenses and any other
out-of-pocket expenses, whether or not such tax was correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error.  For
the avoidance of doubt, this Section shall not limit or expand any Tax
indemnification obligation of any Credit Party under this Credit Agreement.


 


10.12                 Treasury
Management Agreements and Swap Contracts.


 


Except
as otherwise expressly set forth herein or in any Collateral Document, no Treasury
Management Bank or Hedge Bank that obtains the guarantees hereunder or any
Collateral by virtue of the provisions hereof or of any Collateral Document
shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Credit Document or otherwise in
respect of the Collateral (including the release or impairment of any
Collateral) other than in its capacity as a Lender and, in such case, only to
the extent expressly provided in the Credit Documents.  Notwithstanding any other provision of this Article X
to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Treasury Management Agreements and Swap Contracts
unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative
Agent may request, from the applicable Treasury Management Bank or Hedge Bank,
as the case may be.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01                 Amendments,
Etc.


 


No
amendment or waiver of, or any consent to deviation from, any provision of this
Credit Agreement or any other Credit Document shall be effective unless in
writing and signed 


 


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by the Borrower or the applicable Credit Party, as the
case may be, and the Required Lenders and the Administrative Agent (at the
direction of the Required Lenders), and each such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it is given; provided, however, that:


 


(a)           without the consent of each Lender,
no such amendment, waiver or consent shall:


 


(i)            amend or waive any condition
precedent to the initial Credit Extension set forth in Section 5.02
or (solely with respect to the initial Credit Extension) any condition
precedent set forth in Section 5.03;


 


(ii)           change any provision of this Credit
Agreement regarding pro rata sharing or pro rata funding with respect to (A) the
making of advances (including participations), (B) the manner of
application of payments or prepayments of principal, interest, or fees, (C) the
manner of application of reimbursement obligations from drawings under Letters
of Credit, or (D) the manner of reduction of commitments and committed
amounts;


 


(iii)          change any provision of this Section 11.01(a) or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder, or


 


(iv)          release all or substantially all of
the Collateral (other than as provided herein as of the Closing Date or as
appropriate in connection with transactions permitted hereunder as of the
Closing Date), or


 


(v)           release all or substantially all of
the value of the guarantees provided by the Guarantors without the written
consent of each Lender (other than as provided herein as of the Closing Date or
as appropriate in connection with transactions permitted hereunder as of the
Closing Date);


 


(b)           without the consent of each Lender
adversely affected thereby, no such amendment, waiver or consent shall:


 


(i)            extend or increase the Commitment of
any Lender (or reinstate any Commitment terminated pursuant to Section 9.02),
it being understood that the amendment or waiver of an Event of Default or a
mandatory reduction or a mandatory prepayment in Commitments shall not be
considered an increase in Commitments,


 


(ii)           waive non-payment or postpone any
date fixed by this Credit Agreement or any other Credit Document for any
payment of principal, interest, fees or other amounts due to any Lender
hereunder or under any other Credit Document or change the scheduled final
maturity of any Loan,


 


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(iii)          reduce the principal of, or the rate
of interest specified herein on, any Loan or L/C Borrowing, or any fees or
other amounts payable hereunder or under any other Credit Document; provided,
however, that only the consent of the Required Lenders shall be
necessary (A) to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the Default
Rate or (B) to amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder, or


 


(iv)          except as otherwise expressly
permitted in the Credit Documents as in effect on the Closing Date, expressly
subordinate any of the Obligations in right of payment to any other obligations
or subordinate all or substantially all of the Liens securing the Obligations
to Liens securing any other Indebtedness;


 


(c)           unless signed by the Required Term
Lenders, no such amendment, waiver or consent shall:


 


(i)            amend or waive the manner of
application of any mandatory prepayment to the Term Loans under Section 2.06(c),
or


 


(ii)           amend or waive the provisions of this
Section 11.01(c) or the definition of “Required Term Lenders”;


 


(d)           any such amendment, waiver or consent
to any provision that relates to the Revolving Commitments or Revolving Loans,
on the one hand, but not the Term Loan Commitments or the Term Loans, on the
other hand, or relates to the Term Loan Commitments or Term Loans, on the one
hand, but not to the Revolving Commitments or Revolving Loans, on the other
hand, or applies differently to the Term Loan Commitments or Term Loans, on the
one hand, and to the Revolving Commitments or Revolving Loans, on the other
hand, shall also require the consent of the Required Term Lenders or the
Required Revolving Lenders, as the case may be;


 


(e)           unless also signed by the Required
Revolving Lenders, no such amendment, waiver or consent shall amend or waive (i) the
provisions of this Section 11.01(f), (ii) the definition of “Required
Revolving Lenders” or (iii) any condition precedent to any Credit
Extension (other than the initial Credit Extension) set forth in Section 5.03;


 


(f)            unless also consented to in writing
by the L/C Issuers, no such amendment, waiver or consent shall affect the
rights or duties of the L/C Issuers under this Credit Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by them;


 


(g)           unless also consented to in writing
by the Swingline Lender, no such amendment, waiver or consent shall affect the
rights or duties of the Swingline Lender under this Credit Agreement;


 


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(h)           unless also consented to in writing
by the Administrative Agent, no such amendment, waiver or consent shall affect
the rights or duties of the Administrative Agent under this Credit Agreement or
any other Credit Document; and


 


(i)            unless also consented to in writing
by the Collateral Agent, no such amendment, waiver or consent shall affect the
rights or duties of the Collateral Agent under this Credit Agreement or any
other Credit Document;


 


provided, however, that
notwithstanding anything to the contrary contained herein, (i) 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, (ii) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code of the
United States supersedes the unanimous consent provisions set forth herein, (iv) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding, (v) Section 11.06(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 a SPC at the time of
such amendment, waiver or other modification, and (vi) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto.


 


Notwithstanding
anything to the contrary contained in this Section 11.01, (a) if
the Administrative Agent and the Borrower shall have jointly identified an
obvious error (including, but not limited to, an incorrect cross-reference) or
any error or omission of a technical nature, in each case, in any provision of
any Credit Document, then the Administrative Agent and/or the Collateral Agent
(acting in their sole discretion) and the Borrower or any other relevant Credit
Party shall be permitted to amend such provision or cure any ambiguity, defect
or inconsistency and such amendment shall become effective without any further
action or consent of any other party to any Credit Document, and (b) the
Borrower and the Administrative Agent and/or the Collateral Agent shall have
the right to amend any Credit Document without notice to or consent of any
other person to the extent described in the last paragraph of each of Sections 2.01(e) and
(f).


 


11.02                 Notices;
Effectiveness; Electronic Communication.


 


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


 


(i)            if to the Borrower, the
Administrative Agent, an L/C Issuer or the Swingline Lender, to the address,
telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.02; and


 


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


 


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


 


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


 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent (a) to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, if available, return e-mail or
other written acknowledgement) and (b) by facsimile shall be deemed
received upon the sender’s receipt of a notice of the successful transmission
of such facsimile or upon the recipients knowledge of receipt of such
facsimile, provided that, in each case, if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.


 


(c)           THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE CREDIT PARTY MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE CREDIT PARTY MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent,
the Collateral Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to any Credit Party, Lender, L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any Credit Party’s, the
Collateral 


 


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Agent’s or the Administrative Agent’s transmission of Credit Party
Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent jurisdiction
by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Credit Party,
Lender, L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).


 


(d)           Change
of Address, Etc.  Each of the
Borrower, the Administrative Agent, the L/C Issuers and the Swingline Lender
may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto.  Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, each L/C Issuer and the
Swingline Lender.  In addition, each
Lender agrees to notify the Administrative Agent from time to time to ensure
that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address
to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.


 


(e)           Reliance
by Administrative Agent, L/C Issuers and Lenders.  The Administrative Agent, the L/C Issuers and
the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Loan Notices for Swingline Loans) 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 the
Administrative Agent, each L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


11.03                 No Waiver;
Cumulative Remedies; Enforcement.


 


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


 


Notwithstanding
anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit
Documents against the Credit Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 9.02 for the benefit of all the Lenders and
each L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the 


 


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Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Credit Documents, (b) each
L/C Issuer or the Swingline Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender,
as the case may be) hereunder and under the other Credit Documents, (c) any
Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.12), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf during
the pendency of a proceeding relative to any Credit Party under any Debtor
Relief Law; and provided, further, that if at any time there is
no Person acting as Administrative Agent hereunder and under the other Credit
Documents, then (i) the Required Lenders shall have the rights otherwise ascribed
to the Administrative Agent pursuant to Section 9.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.12, any Lender may, with
the consent of the Required Lenders, enforce any rights and remedies available
to it and as authorized by the Required Lenders.


 


11.04                 Expenses;
Indemnity; Damage Waiver.


 


(a)           Costs
and Expenses.  The Borrower shall pay
(i) all reasonable documented out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and the Collateral Agent), in connection with the administration, syndication
and closing of the credit facilities provided for herein, the preparation, due
diligence, negotiation, execution, delivery and administration of this Credit
Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuers in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, any Lender or any
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Collateral Agent, any Lender or any L/C Issuer),
and all fees and time charges for attorneys who may be employees of the
Administrative Agent, the Collateral Agent, any Lender or any L/C Issuer, in
connection with the enforcement or protection of its rights (A) in
connection with this Credit Agreement and the other Credit Documents, including
its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


 


(b)           Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent, the Collateral Agent (and any sub-agents
thereof), each Lender and each L/C Issuer, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including any settlement costs and fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Credit Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Credit Agreement, any
other Credit Document or any


 


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agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder
or the consummation of the transactions contemplated hereby or thereby, or, in
the case of the Administrative Agent and the Collateral Agent (and any
sub-agents thereof) and their Related Parties only, the administration of this
Credit Agreement and the other Credit Documents, (ii) any Loan or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by any L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any Environmental
Liability related to the Borrower or any of its Subsidiaries, or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Credit Party, and regardless of whether
any Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of comparative, contributory or sole
negligence of the Indemnitee; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Credit Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Credit Document, if the Borrower or such Credit Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)           Reimbursement
by Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under subsections
(a) or (b) of this Section to be paid by it to the Administrative
Agent or the Collateral Agent, as the case may be, (or any sub-agent thereof)
any L/C Issuer or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent or the Collateral Agent, as
the case may be, (or any such sub-agent), an L/C Issuer or such Related Party,
as the case may be, such Lender’s Aggregate Commitment Percentage or, in the
case of L/C Obligations, Revolving Commitment Percentage (as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Collateral
Agent, as the case may be,(or any such sub-agent) or such L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting
for the Administrative Agent or the Collateral Agent, as the case may be, (or
any such sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection
(c) are subject to the provisions of Section 2.11(d).


 


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


 


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with this Credit Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby.


 


(e)           Payments.  All amounts due under this Section shall
be payable not later than ten (10) Business Days after demand therefor.


 


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


 


11.05                 Payments Set
Aside.


 


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


 


11.06                 Successors and
Assigns.


 


(a)           Successors
and Assigns Generally.  The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither the Borrower nor any other Credit Party
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
(other than in connection with a transaction permitted by Section 8.04)
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Credit
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the 


 


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Administrative Agent, the L/C Issuers and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Credit Agreement.


 


(b)           Assignments
by Lenders.  Any Lender may at any
time assign to one (1) or more Eligible Assignees all or a portion of its
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swingline Loans) at the time
owing to it); provided that


 


(i)            except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than (A) in the case of Revolving Commitments and
Revolving Loans, $5.0 million, and (B) in the case each of the Term Loans,
$1.0 million, unless, in each case, each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed), it being understood that assignments to a Lender or an Affiliate of a
Lender or an Approved Fund shall not be subject to such minimum amounts;


 


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


 


(iii)          each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Term Loan Lender’s
rights and obligations under this Credit Agreement with respect to the Term
Loans or Term Loan Commitment assigned


 


(iv)          any assignment of (A) a Revolving
Commitment and Revolving Loans must be approved by the Administrative Agent,
the L/C Issuers and the Swingline Lender, unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee) and, so long as no Event of
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that the Borrower’s
approval shall not be required if the proposed assignee is a Lender, an
Affiliate of a Lender or an Approved Fund; and (B) the Term Loans must be
approved by the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that no approval shall be
required if the proposed assignee is a Lender, an Affiliate of a Lender or an
Approved Fund; and


 


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(v)           the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500 (unless
waived by the Administrative Agent in its sole discretion), and the Eligible
Assignee, if it shall not be a Lender, shall (A) deliver to the Administrative
Agent an Administrative Questionnaire and (B) deliver to the Borrower and
the Administrative Agent the forms required to be delivered pursuant to Section 3.01(e).


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Credit Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Credit 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
Credit Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender’s rights and obligations under this Credit Agreement,
such Lender shall cease to be a party hereto) but shall continue to be entitled
to the benefits of Sections 3.01, 3.04, 3.05, and 11.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment.  Upon request, 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 Credit Agreement that does not
comply with this subsection shall be treated for purposes of this Credit Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the 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 of the Loans and L/C Obligations and the
interest thereon owing and paid 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 Administrative Agent 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 Credit Agreement, notwithstanding
notice to the contrary.  The Register shall
be available for inspection by each of the Borrower and the L/C Issuers at any
reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or substantive change to the Credit Documents is
pending, any Lender may request and receive from the Administrative Agent a
copy of the Register.


 


(d)           Participations.  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 or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Credit Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swingline
Loans) owing to it); provided that (i) such Lender’s obligations
under this Credit 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 Administrative Agent, the
Lenders and the L/C Issuers shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under


 


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this Credit Agreement.  Each
Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower,
shall maintain a register for the recordation of the names and addresses of
such Participants and the rights, interests or obligations of such Participants
in any Obligation, in any Commitment and in any right to receive any principal,
interest and other payments thereunder (the “Participant Register”).  The entries in the Participant Register shall
be conclusive absent manifest error and such Lender shall treat each person
whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Credit Agreement notwithstanding any
notice to the contrary.


 


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
Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in Section 11.01(a)(iv) or
(v) or, to the extent the Participant is affected thereby, Section 11.01(b)(i),
(ii) or (iii). 
Subject to subsection (e) of this Section, each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 11.08 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.12
as though it were a Lender.


 


(e)           Limitation
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent, not to be unreasonably withheld or delayed (it being agreed, without
limitation, that it will be reasonable for the Borrower to withhold consent if
giving consent would result in increased indemnification obligations at the
time the participation takes effect or would be reasonably certain to result in
increased indemnification obligations thereafter as a result of a Change in Law
announced prior to the time the participation takes effect), provided
that the Participant agrees to be subject to the provisions of Sections 3.06(a) and
11.13(a) as if it were a Lender. 
For the avoidance of doubt, a Participant entitled to benefits under Section 3.01,
3.04 or 3.05 shall be subject to all of the limitations and
requirements of such Sections as if it were a Lender (including, in the case of
Section 3.01, all of the limitations in the definition of Excluded
Taxes).


 


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


 


(g)           Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of records
in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature or the use of a


 


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paper-based recordkeeping system, as the case may be, to the extent and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.


 


(h)           Special
Purpose Funding Vehicles.  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 Credit Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if a 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 or, if it fails to
do so, to make such payment to the Administrative Agent as is required under Section 2.11(b)(i).  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 Credit Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Credit Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Credit
Document, remain the lender of record hereunder.  The making of a Loan by a 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. 
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Credit Agreement) that, prior
to the date that is one (1) year and one (1) day after the payment in
full of all outstanding commercial paper or other senior debt of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof.  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 in the amount of $2,500, 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.  Each SPC shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Granting Lender and had acquired its interest by assignment pursuant to Section 11.06(b).  A SPC shall not be entitled to receive any
greater payment under Section 3.01, 3.04 or 3.05 than
the applicable Granting Lender would have been entitled to receive with respect
to the interest granted to such SPC unless the grant of the interest is made
with the Borrower’s prior written consent, not to be unreasonably withheld or
delayed (it being agreed, without limitation, that it will be reasonable for
the Borrower to withhold consent if giving consent would result in increased
indemnification obligations at the time the grant to the SPC takes effect or
would be reasonably certain to result in increased indemnification obligations
thereafter as a result of a Change in Law announced prior to the time the grant
to the SPC takes effect), provided that the SPC agrees to be subject to
the provisions of Sections 3.06(a) and 11.13(a) as if
it were a Granting Lender.  For the
avoidance of doubt, a SPC entitled to benefits under Section 3.01, 3.04
or 3.05 shall be subject to all of the limitations and requirements of
such Sections 


 


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as if it were a Granting Lender (including, in the case of Section 3.01,
all of the limitations in the definition of Excluded Taxes).


 


(i)            Resignation
as L/C Issuer or Swingline Lender After Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time any L/C Issuer or Swingline Lender assigns all
of its Commitment and Loans pursuant to subsection (b) above, such
L/C Issuer or Swingline Lender may, (i) upon thirty (30) days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or, in the case of Bank
of America, (ii) upon thirty (30) days’ notice to the Borrower, resign as
Swingline Lender.  In the event of any
such resignation as L/C Issuer or Swingline Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swingline
Lender hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of such L/C
Issuer or Swingline Lender as L/C Issuer or Swingline Lender, as the case may
be.  If any L/C Issuer resigns as L/C Issuer,
it shall retain all the rights, powers, privileges and duties of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to fund risk participations
in Unreimbursed Amounts pursuant to Section 2.03(c)).  If any Swingline Lender resigns as Swingline
Lender, it shall retain all the rights of the Swingline Lender provided for
hereunder with respect to Swingline 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 Swingline
Loans pursuant to Section 2.04(b). 
Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swingline Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to such
resigning L/C Issuer to effectively assume the obligations of such resigning
L/C Issuer with respect to such Letters of Credit.


 


11.07                 Treatment of
Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to
any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Credit Document or any action or
proceeding relating to this Credit Agreement or any other Credit Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Credit Agreement, (ii) any actual or prospective counterparty (or
advisors) to any swap, derivative transaction relating to the Borrower and its
obligations, (g) subject to each such Person being informed of the
confidential nature of the Information and to their agreement to keep such
Information confidential,


 


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to (i) an investor or prospective investor in
securities issued by an Approved Fund that also agrees that Information shall
be used solely for the purpose of evaluating an investment in such securities
issued by the Approved Fund, (ii)  a trustee, collateral manager,
servicer, backup servicer, noteholder or secured party in securities issued by
an Approved Fund in connection with the administration, servicing and reporting
on the assets serving as collateral for securities issued by an Approved Fund,
or (iii)  a nationally recognized rating agency that requires access to
information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued in respect of securities issued by an Approved
Fund, (h) with the consent of the Borrower or (i) to the extent such
Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative
Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.


 


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


 


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


 


11.08                 Right of
Setoff.


 


If an
Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, such L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Credit Party against any and all of the obligations of such
Borrower or such Credit Party now or hereafter existing under this Credit
Agreement or any other Credit Document to such Lender or such L/C Issuer,
irrespective of whether or not such Lender or such L/C Issuer shall have made
any demand under this Credit Agreement or any other Credit Document and
although such obligations of such Borrower or such Credit Party may be
contingent or unmatured or are owed to a branch or office of such Lender or
such L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender, each L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates
may have.


 


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Each Lender and each L/C Issuer agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


11.09                 Interest Rate
Limitation.


 


Notwithstanding
anything to the contrary contained in any Credit Document, the interest paid or
agreed to be paid under the Credit Documents shall not exceed the maximum rate
of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


11.10                 Counterparts;
Integration; Effectiveness.


 


This
Credit Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Credit Agreement and the other Credit
Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof, other
than the conditions precedent set forth in the Commitment Letter.  Except as provided in Section 5.01,
this Credit Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. 
Delivery of an executed counterpart of a signature page of this
Credit Agreement by telecopy or other electronic imaging means shall be as
effective as delivery of a manually executed counterpart of this Credit Agreement.


 


11.11                 Survival of
Representations and Warranties.


 


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


 


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11.12                 Severability.


 


If any
provision of this Credit Agreement or the other Credit Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Credit Agreement and the other Credit
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a provision
in a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


11.13                 Replacement of
Lenders.


 


(a)                                  If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section 11.06),
all of its interests, rights and obligations under this Credit Agreement and
the related Credit Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


(i)            the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 11.06(b);


 


(ii)           such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and L/C
Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Credit Documents (including any amounts
under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts);


 


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


 


(iv)          such assignment does not conflict with
applicable Laws; and


 


(v)           such assignment is recorded in the
Register.


 


A
Lender that has assigned its interests, rights and obligations under this
Credit Agreement and the related Credit Documents pursuant to this Section 11.13(a) shall
continue to be entitled to the benefits of Sections 3.01, 3.04
and 3.06 with respect to the periods during which such Person was a
Lender.


 


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


 


(b)           If,
in connection with any proposed amendment, change, waiver, discharge or
termination of any of the provisions of this Credit Agreement or any other
Credit Document as contemplated by Section 11.01, the consent of
the Required Lenders (or Required Revolving Lenders or Required Term Lenders,
as the case may be) is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in this clause (b) being
referred to as a “Non-Consenting Lender”), then, at the Borrower’s
request, any Eligible Assignee reasonably acceptable to the Administrative
Agent shall have the right to purchase from such Non-Consenting Lender, and
such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s
request, sell and assign to such Eligible Assignee, all of the Commitments and
Loans of such Non-Consenting Lender for an amount equal to the principal
balance of all Loans held by the Non-Consenting Lender and all accrued and unpaid
interest and fees with respect thereto and all other amounts payable to it
hereunder through the date of sale and payment by the Borrower to the
Administrative Agent of the assignment fee under Section 11.06(b); provided,
however, that such purchase and sale shall not be effective until (x) the
Administrative Agent shall have received from such Eligible Assignee an
agreement in form and substance satisfactory to the Administrative Agent and
the Borrower whereby such Eligible Assignee shall agree to be bound by the
terms hereof and (y) such Non-Consenting Lender shall have received
payments of all Loans held by it and all accrued and unpaid interest and fees
with respect thereto and all other amounts payable to it hereunder through the
date of the sale.  Each Lender agrees
that, if it becomes a Non-Consenting Lender, it shall execute and deliver to
the Administrative Agent an Assignment and Assumption to evidence such sale and
purchase and shall deliver to the Administrative Agent any Note (if the
assigning Lender’s Loans are evidenced by a Note) subject to such Assignment
and Assumption; provided, however, that the failure of any
Non-Consenting Lender to execute an Assignment and Assumption shall not render
such sale and purchase (and the corresponding assignment) invalid.


 


11.14                 Governing Law;
Jurisdiction; Etc.


 


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


 


(b)           SUBMISSION
TO JURISDICTION.  EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF SUCH STATE AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER
CREDIT DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE


 


140














 


HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.  NOTHING IN THIS CREDIT
AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY
HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST ANY OTHER PARTY
HERETO OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


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


 


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 11.02.  NOTHING IN
THIS CREDIT AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


 


11.15                 Waiver of Jury
Trial.


 


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


 


11.16                 USA PATRIOT
Act Notice.


 


Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to 


 


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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 or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.


 


11.17                 Designation as
Senior Debt.


 


All
Obligations shall be “Designated Senior Indebtedness” (or such similar defined
term) for purposes of all documentation governing Subordinated Debt.


 


11.18                 No Advisory or
Fiduciary Responsibility.


 


In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Credit Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Credit Agreement provided by the Agents and the Lead Arrangers are arm’s-length commercial transactions
between the Borrower and its
Affiliates, on the one hand, and the Agents and the other Lead Arrangers, on the other hand, (B) the
Borrower  has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Credit Documents; (ii) (A) each Agent and Lead Arranger is and has been acting
solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) no Agent or Lead Arranger has any obligation to
the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Credit Documents; and (iii) the
Agents and the Lead Arrangers
and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrower  and its Affiliates, and no Agent or any Lead Arranger has any obligation to disclose any of such
interests to the Borrower or its  Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against any Agent or Lead Arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.


 


11.19                 Certain FCC
Matters.


 


Notwithstanding
any provision to the contrary contained herein, in any other of the Credit
Documents, Swap Contracts or other documents relating to the Obligations, the
parties hereby acknowledge that any security interest in the Collateral granted
hereunder, or in any other Credit Document, to the extent it relates to any of
the FCC Licenses, is granted only to the extent permitted by applicable law.


 


Notwithstanding
any provision to the contrary contained herein, in any other of the Credit
Documents, Swap Contracts or other documents relating to the Obligations, no
action shall be taken hereunder or thereunder by the Administrative Agent,
Collateral Agent or any Lender with 


 


142

















 


respect to any item of Collateral subject to
restrictions under Communications Law unless and until all applicable
requirements (if any) of the FCC under the Communications Laws, as well as any
other federal, state or local laws, rules and regulations of other
regulatory or governmental bodies applicable to or having jurisdiction over the
Borrower or applicable Guarantor have been satisfied with respect to such
action and there shall have been obtained such consents, approvals and
authorizations (if any) as may be required to be obtained from the FCC and any
other Governmental Authority under the terms of any FCC License or similar
operating right held by the Borrower or any Guarantor.  Without limiting the generality of the
foregoing, the Administrative Agent, the Collateral Agent and the Lenders
hereby agree that (a) voting and consensual rights in the ownership interests
of any Credit Party holding or controlling any FCC Licenses will remain with
the holders of such voting and consensual rights upon and following the
occurrence of an Event of Default unless and until any required prior approvals
of the FCC to the transfer of such voting and consensual rights shall have been
obtained, (b) upon the occurrence of any Event of Default and foreclosure
of such interests the Administrative Agent or Collateral Agent, as the case may
be, shall determine whether there may be a private or public sale of such
interests, and (c) prior to the exercise of such voting or consensual
rights by the purchaser at any such sale, the prior consent of the FCC pursuant
to 47 U.S.C. §310(d) shall be obtained if required.  It is the intention of the parties hereto
that the Liens in favor of the Administrative Agent on the Collateral shall in
all relevant aspects be subject to and governed by such statutes, rules and
regulations and that nothing in this Agreement shall be construed to diminish
the control exercised by the Borrower or any Guarantor except in accordance
with the provisions of such statutory requirements, rules and
regulations.  The Borrower and each
Guarantor agree that, if an Event of Default shall have occurred and be
continuing, upon request from time to time by the Administrative Agent or the
Collateral Agent, the Borrower or such Guarantor will use its reasonable best
efforts to obtain any governmental, regulatory or third party consents,
approvals or authorizations referred to in this Section 11.19,
which such efforts shall include, without limitation, the preparation,
execution and filing with the FCC of (or causing to be prepared, signed and
filed with the FCC) any applications for consent to the assignment of any FCC
Licenses, or to the transfer of control of the Borrower or any Guarantor
holding or controlling any FCC Licenses, required to be signed by the Borrower
or such Guarantor which are, in the Administrative Agent’s or Collateral Agent’s
reasonable determination, necessary, appropriate or desirable under the FCC’s rules and
regulations for approval of any sale or transfer of any of the voting or
consensual rights or the assets of the Borrower or any Guarantor holding or
controlling any FCC Licenses, or any transfer of control in respect of any FCC
License held or controlled by the Borrower or any Guarantor.


 


ARTICLE XII



FOREIGN CURRENCY PARTICIPATIONS


 


12.01                 Alternative
Currency Participations.


 


Notwithstanding
anything to the contrary contained herein, all Revolving Loans that are
denominated in an Alternative Currency (each, an “Alternative Currency Loan”)
shall be made solely by the Revolving Lenders (including the Alternative
Currency Fronting Lender) who are Participating Alternative Currency Lenders
(as defined below).  Each Revolving
Lender acceptable to the Alternative Currency Fronting Lender that has
Alternative Currency Funding


 


143

















 


Capacity
(a “Participating Alternative Currency Lender”) shall irrevocably and
unconditionally purchase and acquire and shall be deemed to irrevocably and
unconditionally purchase and acquire from the Alternative Currency Fronting
Lender, and the Alternative Currency Fronting Lender shall sell and be deemed
to sell to each such Participating Alternative Currency Lender, without
recourse or any representation or warranty whatsoever, an undivided interest
and participation (an “Alternative Currency Participation”) in each
Revolving Loan which is an Alternative Currency Loan funded by the Alternative
Currency Fronting Lender in an amount equal to such Participating Alternative
Currency Lender’s Pro Rata Share of the Borrowing that includes such Revolving
Loan.  Such purchase and sale of an
Alternative Currency Participation shall be deemed to occur automatically upon
the making of an Alternative Currency Loan by the Alternative Currency Fronting
Lender, without any further notice to any Participating Alternative Currency
Lender.  The purchase price payable by
each Participating Alternative Currency Lender to the Alternative Currency
Fronting Lender for each Alternative Currency Participation purchased by it
from the Alternative Currency Fronting Lender shall be equal to 100% of the principal
amount of such Alternative Currency Participation (i.e., the product of (i) the
amount of the Borrowing that includes the relevant Revolving Loan and (ii) such
Participating Alternative Currency Lender’s Pro Rata Share), and such purchase
price shall be payable by each Participating Alternative Currency Lender to the
Alternative Currency Fronting Lender in accordance with the settlement
procedure set forth in Section 12.02 below.  The Alternative Currency Fronting Lender and
the Administrative Agent shall record on their books the amount of Revolving
Loans made by the Alternative Currency Fronting Lender and each Participating
Alternative Currency Lender’s Alternative Currency Participation and Funded
Alternative Currency Participation therein, all payments in respect thereof and
interest accrued thereon and all payments made by and to each Participating
Alternative Currency Lender pursuant to this Section 12.01.


 


For
purposes of determining the Lenders comprising the “Required Lenders” or “Required
Revolving Lenders” from and after the termination of the Revolving Commitments,
(i) the Revolving Obligations of a Lender that is a Participating
Alternative Currency Lender shall be deemed to include the amount of the sum of
each Alternative Currency Participation of such Participating Alternative
Currency Lender and (ii) the amount of the Revolving Obligations of the
Alternative Currency Fronting Lender and its affiliates shall be reduced by an
amount equal to the sum of each Alternative Currency Participation of such Participating
Alternative Currency Lender.


 


12.02                 Settlement
Procedure for Alternative Currency Participations.


 


Each
Participating Alternative Currency Lender’s Alternative Currency Participation
in the Alternative Currency Loans shall be in an amount equal to its Pro Rata
Share of all such Alternative Currency Loans. 
However, in order to facilitate the administration of the Alternative
Currency Loans made by the Alternative Currency Fronting Lender and the
Alternative Currency Participations, settlement among the Alternative Currency
Fronting Lender and the Participating Alternative Currency Lenders with regard
to the Participating Alternative Currency Lenders’ Alternative Currency
Participations shall take place in accordance with the following provisions:


 


(i)      The Alternative Currency Fronting Lender
and the Participating Alternative Currency Lenders shall settle (an “Alternative
Currency Participation Settlement”) by payments in respect of the
Alternative Currency Participations as follows: 
so long as 


 


144

















 


any Alternative Currency
Loans are outstanding, Alternative Currency Participation Settlements shall be
effected upon the request of the Alternative Currency Fronting Lender through
the Administrative Agent on such Business Days as requested by the Alternative
Currency Fronting Lender and as the Administrative Agent shall specify by a
notice by telecopy, telephone or similar form of notice to each Participating
Alternative Currency Lender requesting such Alternative Currency Participation
Settlement (each such date on which an Alternative Currency Participation
Settlement occurs herein called an “Alternative Currency Participation
Settlement Date”), such notice to be delivered no later than 2:00 p.m.
(New York Time) at least one Business Day prior to the requested Alternative
Currency Participation Settlement Date. 
Alternative Currency Participation Settlements in respect of Alternative
Currency Loans shall be made in the currency in which such Alternative Currency
Loan was funded on the Alternative Currency Participation Settlement Date for
such Alternative Currency Loans.


 


(ii)     If any Participating Alternative Currency
Lender fails to pay to the Alternative Currency Fronting Lender on any Alternative
Currency Participation Settlement Date the full amount required to be paid by
such Participating Alternative Currency Lender to the Alternative Currency
Fronting Lender on such Alternative Currency Participation Settlement Date in
respect of such Participating Alternative Currency Lender’s Alternative
Currency Participation (such Participating Alternative Currency Lender’s “Alternative
Currency Participation Settlement Amount”) with the Alternative Currency
Fronting Lender, the Alternative Currency Fronting Lender shall be entitled to
recover such unpaid amount from such Participating Alternative Currency Lender,
together with interest thereon (in the same respective currency or currencies
as the relevant Alternative Currency Loans) at the Base Rate plus 2.00%.  Without limiting the Alternative Currency
Fronting Lender’s rights to recover from any Participating Alternative Currency
Lender any unpaid Alternative Currency Participation Settlement Amount payable
by such Participating Alternative Currency Lender to the Alternative Currency
Fronting Lender, the Administrative Agent shall also be entitled to withhold
from amounts otherwise payable to such Participating Alternative Currency
Lender an amount up to such Participating Alternative Currency Lender’s unpaid
Alternative Currency Participation Settlement Amount owing to the Alternative
Currency Fronting Lender and apply such withheld amount to the payment of any
unpaid Alternative Currency Participation Settlement Amount owing by such
Participating Alternative Currency Lender to the Alternative Currency Fronting
Lender.


 


(iii)    A Participating Alternative Currency Lender
which has a Funded Alternative Currency Participation shall be entitled to
receive interest on such Funded Alternative Currency Participation to the same
extent as if such Alternative Currency Lender was the direct holder of the
portion of the Loan in which it purchased an Alternative Currency Participation
(it being agreed that, promptly upon the receipt by the Alternative Currency
Fronting Lender or any of its Affiliates of any interest in respect of any Loan
in which a Participating Alternative Currency Lender has a Funded Alternative
Currency Participation, the Alternative Currency Fronting Lender will pay or
cause to be paid in immediately available funds (in the currency in which the
respective Alternative Currency Loan was funded (or, if different, the currency
in which such interest payments are actually received)) to such Participating
Foreign Currency Lender an amount equal to (x) its ratable 


 


145

















 


share of such interest minus
0.25% of such ratable share); provided that, for the avoidance of doubt,
the Alternative Currency Fronting Lender shall only be required to pay or cause
to be paid such amount to the extent it or any of its Affiliates has actually
received the relevant interest payment in full; provided  further
that if it or its Affiliates receive less than full payment then such amount
shall be reduced proportionately.


 


12.03                 Obligations
Irrevocable.


 


The
obligations of each Participating Alternative Currency Lender to purchase from
the Alternative Currency Fronting Lender a participation in each Alternative
Currency Loan made by the Alternative Currency Fronting Lender and to make
payments to the Alternative Currency Fronting Lender with respect to such
participation, in each case as provided herein, shall be irrevocable and not
subject to any qualification or exception whatsoever, including any of the following
circumstances:


 


(i)      any lack of validity or enforceability of
this Credit Agreement or any of the other Credit Documents or of any Loans,
against any Credit Party;


 


(ii)     the existence of any claim, setoff, defense
or other right which any Credit Party may have at any time against the
Administrative Agent, any Participating Alternative Currency Lender, or any
other Person, whether in connection with this Credit Agreement, any Alternative
Currency Loans, the transactions contemplated herein or any unrelated
transactions;


 


(iii)    any application or misapplication of any
proceeds of any Alternative Currency Loans;


 


(iv)    the surrender or impairment of any security
for any Alternative Currency Loans;


 


(v)     the occurrence of any Default or Event of
Default;


 


(vi)    the commencement or pendency of any events
specified in Section 9.01(f) or (g), in respect of any Loan
Party or any Restricted Subsidiaries; or


 


(vii)   the failure to satisfy the applicable
conditions precedent set forth in Article V.


 


12.04                 Recovery or
Avoidance of Payments.


 


In the
event any payment by or on behalf of the Borrower or any other Credit Party received
by the Administrative Agent with respect to any Alternative Currency Loan made
by the Alternative Currency Fronting Lender is thereafter set aside, avoided or
recovered from the Administrative Agent in connection with any insolvency
proceeding or due to any mistake of law or fact, each Participating Alternative
Currency Lender shall, upon written demand by the Administrative Agent, pay to
the Alternative Currency Fronting Lender (through the Administrative Agent)
such Participating Alternative Currency Lender’s Pro Rata Share of such amount
set aside, avoided or recovered, together with interest at the rate and in the
currency required to be 


 


146

















 


paid by the Alternative Currency Fronting Lender or
the Administrative Agent upon the amount required to be repaid by it.


 


12.05                 Indemnification
by Lenders.


 


Each
Participating Alternative Currency Lender agrees to indemnify the Alternative
Currency Fronting Lender (to the extent not reimbursed by the Borrower and
without limiting the obligations of the Borrower hereunder or under any other
Credit Document) ratably for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys’ fees) or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Alternative Currency Fronting
Lender in any way relating to or arising out of any Alternative Currency Loans
or any action taken or omitted by the Alternative Currency Fronting Lender in
connection therewith; provided that no Participating Alternative
Currency Lender shall be liable for any of the foregoing to the extent it
arises from the gross negligence or willful misconduct of the Alternative
Currency Fronting Lender (as determined by a court of competent jurisdiction in
a final non-appealable judgment). 
Without limiting the foregoing, each Participating Alternative Currency
Lender agrees to reimburse the Alternative Currency Fronting Lender promptly
upon demand for such Participating Alternative Currency Lender’s ratable share
of any costs or expenses payable by the Borrower to the Alternative Currency
Fronting Lender in respect of the Alternative Currency Loans to the extent that
the Alternative Currency Fronting Lender is not promptly reimbursed for such
costs and expenses by the Borrower.  The
agreement contained in this Section 12.05 shall survive payment in
full of all Alternative Currency Loans.


 


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


 


	
   

  	
  HSN, INC., as
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                   ],
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  



 


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  BANK OF AMERICA, N.A., as
  Administrative

  Agent, Collateral Agent, L/C Issuer, Swingline

  Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH CAPITAL CORPORA-

  TION,  as Syndication
  Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH BANK USA,  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS BANK PLC, as
  Co-Documentation

  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized
  Signatory

  
	
   

  	
   

  	
  Name: Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,
  as Co-

  Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Name:
  Authorized Signatory

  
	
   

  	
   

  	
  Title:

  
				



 


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  MORGAN STANLEY SENIOR FUNDING,

  INC., as Co-Documentation Agent and as a

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Name:
  Authorized Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION, as Co-Documentation Agent,

  L/C Issuer and as a Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Authorized Signatory

  
	
   

  	
   

  	
  Name:
  Authorized Signatory

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [OTHER
  LENDERS]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Authorized Signatory

  
	
   

  	
   

  	
  Name:
  Authorized Signatory

  
	
   

  	
   

  	
  Title:

  



 


150