Exhibit 10.20


 


CONFORMED COPY


 


CREDIT AGREEMENT



dated as of July 25, 2008



among



TICKETMASTER,

as Borrower,



CERTAIN SUBSIDIARIES OF THE BORROWER,

as Guarantors,



THE LENDERS PARTY HERETO,



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Collateral Agent,



MERRILL LYNCH CAPITAL CORPORATION,

as Syndication Agent,



BANK OF AMERICA, N.A.,

BARCLAYS BANK PLC,


MORGAN STANLEY SENIOR FUNDING
INC.,


and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as
Co-Documentation Agents,



J.P. MORGAN SECURITIES INC.,

and

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,

as Joint Lead Arrangers


 


and


 


J.P. MORGAN SECURITIES INC.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


BANC OF AMERICA SECURITIES LLC,


BARCLAYS CAPITAL,


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

  	
  40

  
	
  1.03

  	
  Accounting Terms and Provisions

  	
  41

  
	
  1.04

  	
  Rounding

  	
  42

  
	
  1.05

  	
  Times of Day

  	
  42

  
	
  1.06

  	
  Exchange Rates; Currency
  Equivalents

  	
  42

  
	
  1.07

  	
  Additional Alternative Currencies

  	
  43

  
	
  1.08

  	
  Additional Borrowers

  	
  43

  
	
  1.09

  	
  Change of Currency

  	
  43

  
	
  1.10

  	
  Letter of Credit Amounts

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  COMMITMENTS AND CREDIT EXTENSIONS

  
	
   

  
	
  2.01

  	
  Commitments

  	
  44

  
	
  2.02

  	
  Borrowings, Conversions and
  Continuations

  	
  49

  
	
  2.03

  	
  Additional Provisions with Respect
  to Letters of Credit

  	
  51

  
	
  2.04

  	
  Additional Provisions with Respect
  to Swingline Loans

  	
  58

  
	
  2.05

  	
  Repayment of Loans

  	
  60

  
	
  2.06

  	
  Prepayments

  	
  61

  
	
  2.07

  	
  Termination or Reduction of
  Commitments

  	
  65

  
	
  2.08

  	
  Interest

  	
  66

  
	
  2.09

  	
  Fees

  	
  66

  
	
  2.10

  	
  Computation of Interest and Fees

  	
  68

  
	
  2.11

  	
  Payments Generally; Administrative
  Agent’s Clawback

  	
  68

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  70

  
	
  2.13

  	
  Evidence of Debt

  	
  71

  
	
  2.14

  	
  CAM Exchange

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  
	
   

  
	
  3.01

  	
  Taxes

  	
  73

  
	
  3.02

  	
  Illegality

  	
  76

  
	
  3.03

  	
  Inability to Determine Rates

  	
  76

  
	
  3.04

  	
  Increased Cost; Capital Adequacy

  	
  76

  



 


i

















 


	
  Section

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  
	
  3.05

  	
  Compensation for Losses

  	
  78

  
	
  3.06

  	
  Mitigation Obligations; Replacement
  of Lenders

  	
  78

  
	
  3.07

  	
  Survival Losses

  	
  79

  
	
  3.08

  	
  Additional Reserve Costs

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  GUARANTY

  
	
   

  
	
  4.01

  	
  The Guaranty

  	
  80

  
	
  4.02

  	
  Obligations Unconditional

  	
  80

  
	
  4.03

  	
  Reinstatement

  	
  81

  
	
  4.04

  	
  Certain Waivers

  	
  82

  
	
  4.05

  	
  Remedies

  	
  82

  
	
  4.06

  	
  Rights of Contribution

  	
  83

  
	
  4.07

  	
  Guaranty of Payment; Continuing
  Guaranty

  	
  83

  
	
  4.08

  	
  Joint and Several Liability of the
  Borrower

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  
	
  5.01

  	
  Conditions to Closing Date

  	
  83

  
	
  5.02

  	
  Conditions to the Funding Date

  	
  84

  
	
  5.03

  	
  Conditions to All Credit Extensions

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  88

  
	
  6.02

  	
  Authorization; No Contravention

  	
  88

  
	
  6.03

  	
  Governmental Authorization; Other
  Consents

  	
  89

  
	
  6.04

  	
  Binding Effect

  	
  89

  
	
  6.05

  	
  Financial Statements

  	
  89

  
	
  6.06

  	
  No Material Adverse Effect

  	
  90

  
	
  6.07

  	
  Litigation

  	
  90

  
	
  6.08

  	
  No Default

  	
  90

  
	
  6.09

  	
  Ownership of Property; Liens

  	
  90

  
	
  6.10

  	
  Taxes

  	
  90

  
	
  6.11

  	
  ERISA Compliance

  	
  91

  
	
  6.12

  	
  Subsidiaries

  	
  91

  
	
  6.13

  	
  Margin Regulations; Investment
  Company Act

  	
  92

  
	
  6.14

  	
  Disclosure

  	
  92

  
	
  6.15

  	
  Compliance with Laws

  	
  92

  
						



 


ii

















 


	
  Section

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  
	
  6.16

  	
  Solvency

  	
  92

  
	
  6.17

  	
  Intellectual Property; Licenses,
  Etc

  	
  93

  
	
  6.18

  	
  Security Agreement

  	
  93

  
	
  6.19

  	
  Pledge Agreement

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  
	
  7.01

  	
  Financial Statements

  	
  94

  
	
  7.02

  	
  Certificates; Other Information

  	
  95

  
	
  7.03

  	
  Notification

  	
  97

  
	
  7.04

  	
  Preservation of Existence

  	
  97

  
	
  7.05

  	
  Payment of Taxes and Other
  Obligations

  	
  97

  
	
  7.06

  	
  Compliance with Law

  	
  98

  
	
  7.07

  	
  Maintenance of Property

  	
  98

  
	
  7.08

  	
  Insurance

  	
  98

  
	
  7.09

  	
  Books and Records

  	
  98

  
	
  7.10

  	
  Inspection Rights

  	
  99

  
	
  7.11

  	
  Use of Proceeds

  	
  99

  
	
  7.12

  	
  Joinder of Subsidiaries as
  Guarantors

  	
  99

  
	
  7.13

  	
  Pledge of Capital Stock

  	
  100

  
	
  7.14

  	
  Pledge of Other Property

  	
  100

  
	
  7.15

  	
  Further Assurances Regarding
  Collateral

  	
  101

  
	
  7.16

  	
  Post-Closing Matters

  	
  102

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  
	
  8.01

  	
  Liens

  	
  102

  
	
  8.02

  	
  Investments

  	
  105

  
	
  8.03

  	
  Indebtedness

  	
  107

  
	
  8.04

  	
  Mergers and Dissolutions

  	
  110

  
	
  8.05

  	
  Dispositions

  	
  111

  
	
  8.06

  	
  Restricted Payments

  	
  111

  
	
  8.07

  	
  Change in Nature of Business

  	
  112

  
	
  8.08

  	
  Change in Accounting Practices or
  Fiscal Year

  	
  112

  
	
  8.09

  	
  Transactions with Affiliates

  	
  112

  
	
  8.10

  	
  Financial Covenants

  	
  113

  
	
  8.11

  	
  Limitation on Subsidiary Distributions

  	
  113

  
	
  8.12

  	
  Spin-Off

  	
  114

  
	
  8.13

  	
  Transfers/Investments with respect
  to Certain Subsidiaries

  	
  114

  
						



 


iii

















 


	
  Section

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT AND REMEDIES

  
	
   

  
	
  9.01

  	
  Events of Default

  	
  115

  
	
  9.02

  	
  Remedies upon Event of Default

  	
  117

  
	
  9.03

  	
  Application of Funds

  	
  118

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  AGENTS

  
	
   

  
	
  10.01

  	
  Appointment and Authorization of
  Administrative Agent and Collateral Agent

  	
  119

  
	
  10.02

  	
  Rights as a Lender

  	
  120

  
	
  10.03

  	
  Exculpatory Provisions

  	
  120

  
	
  10.04

  	
  Reliance by Administrative Agent
  and Collateral Agent

  	
  121

  
	
  10.05

  	
  Delegation of Duties

  	
  121

  
	
  10.06

  	
  Resignation of the Administrative
  Agent or the Collateral Agent

  	
  122

  
	
  10.07

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

  	
  123

  
	
  10.08

  	
  No Other Duties

  	
  123

  
	
  10.09

  	
  Administrative Agent or Collateral
  Agent May File Proofs of Claim

  	
  123

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  124

  
	
  10.11

  	
  Withholding Tax

  	
  125

  
	
  10.12

  	
  Treasury Management Agreements and
  Swap Contracts

  	
  125

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
  11.01

  	
  Amendments, Etc.

  	
  126

  
	
  11.02

  	
  Notices; Effectiveness; Electronic
  Communication

  	
  129

  
	
  11.03

  	
  No Waiver; Cumulative Remedies;
  Enforcement

  	
  131

  
	
  11.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  132

  
	
  11.05

  	
  Payments Set Aside

  	
  134

  
	
  11.06

  	
  Successors and Assigns

  	
  134

  
	
  11.07

  	
  Treatment of Certain Information;
  Confidentiality

  	
  139

  
	
  11.08

  	
  Right of Setoff

  	
  141

  
	
  11.09

  	
  Interest Rate Limitation

  	
  141

  
	
  11.10

  	
  Counterparts; Integration;
  Effectiveness

  	
  141

  
	
  11.11

  	
  Survival of Representations and
  Warranties

  	
  142

  
	
  11.12

  	
  Severability

  	
  142

  
	
  11.13

  	
  Replacement of Lenders

  	
  142

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  144

  
						



 


iv

















 


	
  Section

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  
	
  11.15

  	
  Waiver of Jury Trial

  	
  144

  
	
  11.16

  	
  USA PATRIOT Act Notice

  	
  145

  
	
  11.17

  	
  Designation as Senior Debt

  	
  145

  
	
  11.18

  	
  No Advisory or Fiduciary
  Responsibility

  	
  145

  
						



 


v

















 


	
  SCHEDULES

  
	
   

  
	
  Schedule 1.01A

  	
  Existing Letters of Credit

  	
   

  
	
  Schedule 1.01B

  	
  Funding Date Guarantors

  	
   

  
	
  Schedule 2.01

  	
  Lenders and Commitments

  	
   

  
	
  Schedule 2.09(c)

  	
  Funding Fees

  	
   

  
	
  Schedule 3.08

  	
  Mandatory Cost Rate

  	
   

  
	
  Schedule 5.01(c)(ii)

  	
  Scheduled Matters

  	
   

  
	
  Schedule 6.12

  	
  Subsidiaries

  	
   

  
	
  Schedule 7.08

  	
  Insurance

  	
   

  
	
  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 2.02

  	
  Form of Loan Notice

  	
   

  
	
  Exhibit 2.13-1

  	
  Form of Dollar Revolving Note

  	
   

  
	
  Exhibit 2.13-2

  	
  Form of Approved Currency Revolving Note

  	
   

  
	
  Exhibit 2.13-3

  	
  Form of Swingline Note

  	
   

  
	
  Exhibit 2.13-4

  	
  Form of Term A Note

  	
   

  
	
  Exhibit 2.13-5

  	
  Form of Term B 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 TICKETMASTER, a Delaware
corporation (the “Borrower”), the Guarantors identified herein, the
Lenders party hereto, and JPMORGAN CHASE BANK, 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:


 


I.


 


DEFINITIONS AND ACCOUNTING TERMS


 


A.                                   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 JPMCB 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 Approved Currency Revolving Commitments”
means the Approved Currency Revolving Commitments of all the Lenders.


 


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


 


“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, Term A Loan Commitment and Term B Loan Commitment and the
denominator of which is the Aggregate Commitments.


 


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


 


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


 


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


 


“Aggregate Revolving Commitments” means the
collective reference to the Aggregate Dollar Revolving Commitments and the
Aggregate Approved Currency Revolving Commitments.


 


“Aggregate Revolving Committed Amount” means
the collective reference to the Aggregate Dollar Revolving Committed Amount and
the Aggregate Approved Currency Revolving Committed Amount.


 


“Aggregate Term A Loan Committed Amount” means
one hundred million Dollars ($100.0 million).


 


“Aggregate Term B Loan Committed Amount” means
three hundred fifty million Dollars ($350.0 million).


 


2

















 


“Alternative Currency” means each of Euros,
Canadian Dollars and Sterling and any other currency added as an “Alternative
Currency” pursuant to Section 1.07 hereof.


 


“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 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.


 


“Applicable Percentage” means (i) with
respect to Term B Loans, (x) 3.25% in the case of Eurodollar Rate Loans
and (y) 2.25% in the case of Base Rate Loans and (ii) with respect to
Revolving Loans, Swingline Loans, Letter of Credit Fees and Term A Loans the
following percentages per annum:


 


APPLICABLE PERCENTAGES
FOR REVOLVING LOANS, SWINGLINE LOANS,

LETTER OF CREDIT FEES AND TERM A 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

  	
   

  	
  2.25%

  	
   

  	
  1.25%

  	
   

  	
  1.75%

  	
   

  	
  0.75%

  	
   

  
	
  II

  	
   

  	
  > 1.50
  but

  < 2.25:1.00

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  	
   

  	
  2.00%

  	
   

  	
  1.00%

  	
   

  
	
  III

  	
   

  	
  > 2.25
  but

  < 3.00:1.00

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  	
  2.25%

  	
   

  	
  1.25%

  	
   

  
	
  IV

  	
   

  	
  > 3.00:1.00

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  	
   

  



 


Applicable Percentages for Revolving Loans, Swingline
Loans, Letter of Credit Fees and Term A 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



 


3

















 


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 A Loans.


 


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 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 Currency Revolving Commitment” means,
for each Lender, the commitment of such Lender to make Approved Currency
Revolving Loans hereunder.


 


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


 


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


 


4














 


“Approved Currency Revolving Facility”
means the Aggregate Approved Currency Revolving Commitments and the provisions
herein related to the Approved Currency Revolving Loans.


 


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


 


“Approved
Currency Revolving Lenders” means those Lenders with Approved Currency
Revolving Commitments, together with their successors and permitted
assigns.  The initial Approved Currency
Revolving Lenders are identified in Schedule 2.01.


 


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


 


“Approved
Currency Revolving Notes” means the promissory notes, if any, given to
evidence the Approved Currency Revolving Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced. 
A form of Approved Currency Revolving Note is attached as Exhibit 2.13-2.


 


“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).


 


“Base
Rate” means (i) in the case of Loans denominated in Dollars 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 JPMCB as its “prime
rate” in effect at its principal office in New York City and (ii) in the
case of Loans denominated in Canadian Dollars the greater of (a) the rate
of interest publicly announced from time to time by JPMorgan Chase Bank, N.A.,
Toronto Branch as its reference rate of interest for loans made in Canadian
Dollars to Canadian customers and designed as its “prime” rate and (b) the
rate of interest per annum equal to the average annual yield rate for one-month
Canadian 


 


5

















 


Dollar bankers’ acceptances (expressed for such
purposes as a yearly rate per annum) which is shown on the “CDOR Page” (or any
substitute) at 10:00 A.M. (Toronto time) on such day (or if not a Business
Day, the preceding Business Day), plus 0.75% per annum.  The “prime rate” is a rate set by JPMCB or
JPMorgan Chase Bank, N.A., Toronto Branch, as applicable based upon various
factors including its 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 JPMCB or
JPMorgan Chase Bank, N.A., Toronto Branch shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


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


 


“BCV”
means Broadway China Ventures, LLC.


 


“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 


 


6

















 


having capital and surplus in excess of $500.0 million
or (iii) any bank whose short-term 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 


 


7

















 


case of both clauses (ii) and (iii),
any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a
solicitation for the election of one (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 JPMCB 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.


 


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


 


“Commitment
Letter” means the Commitment Letter dated as of June 19, 2008 among
the Borrower, JPMCB, the Lead Arrangers and the other parties thereto, together
with all schedules and annexes thereto, as amended to the date hereof.


 


“Commitment
Percentage” means the Revolving Commitment Percentage, the Term A Loan
Commitment Percentage or the Term B Loan Commitment Percentage, as appropriate.


 


“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 Commitments, the L/C Commitments, the Swingline Commitment,
the Term A Loan Commitments and the Term B Loan Commitments.


 


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


 


8

















 


“Consolidated
EBITDA” means, for any period for the Consolidated Group, Consolidated Net
Income in such period plus, without duplication, (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 $25.0
million in any four quarter period ending on or prior to September 30,
2009 and $6.0 million in any four quarter period ending thereafter, (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 the 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
$66.8 million, $80.2 million and $70.2 million, respectively.  Without duplication of any pro forma 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 relating thereto), in each case other than in
connection with a refinancing thereof, (ii) Consolidated


 


9

















 


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 Sections
8.02(c), (i), (j), (k) (other than with respect to any
amount expended on such Investments through the use of the Cumulative Credit)
or (v) during such period, (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 and (vi) to the extent such amounts increased net cash provided by
operating activities in such period, funds collected by the Borrower or any of
its Subsidiaries on behalf of clients of the Borrower or any of its
Subsidiaries representing
the face amount of tickets sold  plus (c) to the extent such
amounts decreased net cash provided by operating activities in such period,
funds remitted by the Borrower or any of its Subsidiaries to clients of the
Borrower or any of its Subsidiaries
representing the face amount of tickets sold.


 


“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  minus interest income
determined on a consolidated basis (except to the extent included in the
Borrower’s consolidated revenues in accordance with GAAP); 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.


 


10

















 


Without
duplication of any of the 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).


 


“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, 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 outstanding letters of credit shall not
constitute Funded Debt unless such letters of credit have been drawn on by the
beneficiary thereof and the resulting obligations have not been paid by the
Borrower).


 


“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


 


11

















 


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.


 


“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 (including any Foreign Subsidiary that becomes a
borrower under Section 1.08).


 


“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)(i) the amount of the Consolidated Excess
Cash Flow for each full fiscal quarter of the Borrower completed after the
Funding Date, to the extent the financial statements required to be delivered
for the period ending on the last day of such fiscal quarter pursuant to Section 7.01(a) or
(b) have been delivered and, to the extent the end of such fiscal
quarter coincides with the end of a fiscal year of the Borrower, 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 (provided that, to the extent the end of any fiscal quarter of
the Borrower does not coincide with the end of a fiscal year of the Borrower,
25% of the Consolidated Excess Cash Flow generated in such fiscal quarter shall
not be counted toward calculating the amount referred to in this clause (a) until
the financial statements for the fiscal year in which fiscal quarter falls have
been delivered pursuant to Section 7.01(a) 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 (b) without duplication of any amounts referred to
in clause (d), 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), 8.02(r) or 8.06(h))
after the Funding Date and at or prior to such time plus (c) in the
case of a use of the Cumulative Credit to make an Investment pursuant to Section 8.02(k) only,
the amount of Domestic Cash and Foreign Cash plus (d) 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 (e) 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 


 


12

















 


Cumulative Credit (excluding such proposed use of the
Cumulative Credit, but including any other simultaneous proposed use of the
Cumulative Credit) minus (f) the ECF Application Amount for each
fiscal year of the Borrower, to the extent the financial statements for such
fiscal year have been delivered pursuant to Section 7.01(a).


 


“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.


 


“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.


 


“Designated Revolving Obligations”
means all obligations of the Borrower with respect to (a) principal and
interest under the Revolving Loans and Swingline Loans, (b) L/C Borrowings
and interest thereon and (c) accrued and unpaid fees thereon.


 


“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 


 


13

















 


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 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.


 


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


 


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


 


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


 


“Dollar Revolving Facility” means the
Aggregate Dollar Revolving Commitments and the provisions herein related to the
Dollar Revolving Loans, the Swingline Loans and the Letters of Credit.


 


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


 


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


 


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


 


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


 


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


 


“Domestic
Cash” means the amount of cash and Cash Equivalents (other than any
proceeds of any Revolving Loans or Swingline Loans) reflected in the bank
statements of the 


 


14

















 


Borrower and the Borrower’s Domestic Subsidiaries
immediately after giving effect to the Transactions, to the extent such amount
is unrestricted as of the Spin-Off Date after giving effect to the
Transactions, it being understood that cash required to be remitted to
customers representing the face amount of tickets sold shall be deemed to be restricted
(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 2.50:1.00, fifty percent (50%)
and (ii) less than 2.50:1.00, 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.


 


15














 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the 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).


 


16

















 


“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.


 


“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) fee interests in real property with a fair
market value of less than $2.5 million, (c) leasehold real property, (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 


 


17

















 


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, 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.


 


“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
JPMCB 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, JPMCB, the
Lead Arrangers and the other parties thereto, as amended to the date hereof.


 


“Final Maturity Date”
means, at any time, the latest of the Revolving Termination Date, the Term A
Loan Termination Date, the Term B 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.


 


“Foreign Cash” means,
at any time, any portion of the amount of the cash and Cash Equivalents (other
than any proceeds of any Revolving Loans or Swingline Loans), after giving
effect to any payments required to be made pursuant to Section 4.04 of the
Separation Agreement, reflected in the bank statements of the Borrower’s
Foreign Subsidiaries immediately after giving effect to the Transactions that
is unrestricted on the Spin-Off Date and after giving effect to the
Transactions and, to the extent such cash is repatriated to the Borrower or a


 


18

















 


Domestic Subsidiary, net of
applicable taxes in connection with such repatriation, it being understood that
cash required to be remitted to customers representing the face amount of
tickets sold shall be deemed to be restricted.


 


“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 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 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 


 


19

















 


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”
has the meaning provided in Section 1.03(a).


 


“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) each other Person that becomes a Guarantor pursuant to
the terms hereof, in each case together with its successors; provided,
that, for the avoidance of doubt, no Foreign Subsidiary shall be a Guarantor.


 


“Hazardous Materials”
means all materials, substances or wastes characterized, classified or
regulated as hazardous, toxic, pollutant, contaminant or radioactive under
Environmental 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 $750.0 million.


 


20

















 


“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(f).


 


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


 


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


 


“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(h).


 


“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;


 


(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 


 


21

















 


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 A Loans or Term B Loans, as applicable, 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 A Loans or Term B Loans, as
applicable, 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;


 


(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 A Loans or Term B 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.


 


22

















 


“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 the L/C Issuer (or in favor of the
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.


 


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


 


“JPMorgan” means J.P.
Morgan Securities Inc.


 


“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.


 


23

















 


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


 


“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 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.


 


“L/C Commitment”
means, with respect to the L/C Issuer, the commitment of the 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 Dollar 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 Issuer” means
each of JPMCB and Wachovia Bank, National Association, in each case in its
capacity as issuer of Letters of Credit hereunder, together with its successors
in such capacity and any other Dollar Revolving Lender approved by the
Administrative Agent and the Borrower; provided that no other Lender
shall be obligated to become an L/C Issuer hereunder.  References herein and in the other Credit
Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in
respect of the applicable Letter of Credit or to all L/C Issuers, as the
context requires.


 


“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 JPMorgan and MLPF&S.


 


“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.


 


24














 


“Letter of Credit” means each standby letter of
credit issued under the Dollar Revolving Facility and shall include the
Existing Letters of Credit.


 


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


 


“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 A Loan, Term B 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 shall be substantially in the form
of Exhibit 2.02.


 


“Loan Obligations”
means the Revolving Obligations, Term A Loans, Term B 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 $25.0 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 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.


 


“MLPF&S” means
Merrill Lynch, Pierce, Fenner & Smith Incorporated.


 


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


 


“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, 


 


25

















 


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).  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).


 


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


 


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


 


“Obligations” means,
without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party (including any Foreign
Subsidiary which becomes a borrower hereunder pursuant to Section 1.08)
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 


 


26

















 


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(h).


 


“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; (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 A Loans or
Term B Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any prepayments or repayments of the Term A
Loans or Term B 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 


 


27

















 


rate is being determined,
would be offered for such day by a branch or Affiliate of JPMCB 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 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 $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)) 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 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 Sections 8.02(f), (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.


 


28

















 


“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
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 


 


29

















 


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 affected 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 $15.0 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 A Loans or Term B Loans (or, prior to the
Funding Date, Term A Loan Commitments or Term B Loan Commitments) or
Revolving Commitments, as applicable, of such Lender at such time and the
denominator of which is the aggregate amount of Term A Loans, Term B Loans
(or, prior to the Funding Date, Term A Loan Commitments or Term B 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.


 


“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.


 


30

















 


“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, an L/C Application.


 


“Required Approved
Currency Revolving Lenders” means, as of any date of determination, Lenders
having more than fifty percent (50%) of the Aggregate Approved Currency
Revolving Commitments or, if the Approved Currency Revolving Commitments shall
have expired or been terminated, Lenders holding more than fifty percent (50%)
of the aggregate principal amount of Approved Currency Revolving Loans; provided
that the Approved Currency Revolving Commitment of, and the portion of Approved
Currency Revolving Loans held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Approved Currency Revolving
Lenders


 


“Required Dollar
Revolving Lenders” means, as of any date of determination, Lenders having
more than fifty percent (50%) of the Aggregate Dollar Revolving Commitments or,
if the Dollar Revolving Commitments shall have expired or been terminated,
Lenders holding more than fifty percent (50%) of the aggregate principal amount
of Dollar 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 Dollar
Revolving Commitment of, and the portion of Dollar Revolving Obligations held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Dollar Revolving Lenders.


 


“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 


 


31

















 


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 A Lenders”
means, as of any date of determination, Lenders holding more than fifty percent
(50%) of the aggregate principal amount of Term A Loan Commitments (or, from
and after the initial borrowings hereunder, the Term A Loans); provided
that the Term A Loan Commitments held or deemed held by any Defaulting Lender
shall be excluded for purposes of making a determination of Required Term
Lenders.


 


“Required Term B Lenders”
means, as of any date of determination, Lenders holding more than fifty percent
(50%) of the aggregate principal amount of Term B Loan Commitments (or, from
and after the initial borrowings hereunder, the Term B Loans); provided
that the Term B Loan 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 the L/C Issuer under any Letter of Credit denominated in
an Alternative Currency, and (iv) such additional dates as the
Administrative Agent or the 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 


 


32

















 


Currency, and (iv) such
additional dates as the Administrative Agent or the Required Revolving Lenders
shall require.


 


“Revolving CAM Exchange”
means the exchange of the Revolving Lenders’ interests in the Designated
Revolving Obligations provided for in Section 2.14.


 


“Revolving CAM Exchange
Date” means the first date after the Closing Date on which there shall
occur (a) any event described in Section 9.01(f) or (h) with
respect to the Borrower or (b) an acceleration of Revolving Loans or
termination of the Revolving Commitments pursuant to Section 9.02.


 


“Revolving CAM Percentage”
means, as to each Revolving Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the Revolving Commitments of such
Revolving Lender immediately prior to the Revolving CAM Exchange Date and any
termination of Revolving Commitments and (b) the denominator shall be the
Aggregate Revolving Commitments of all Revolving Lenders immediately prior to
the Revolving CAM Exchange Date and any termination of Revolving Commitments.


 


“Revolving Commitment”
means a Dollar Revolving Commitment or an Approved Currency Revolving
Commitment and “Revolving Commitments” means, collectively, the Dollar
Revolving Commitments and Approved Currency Revolving Commitments.


 


“Revolving Commitment
Percentage” means the collective reference to the Dollar Revolving
Commitment Percentage and the Approved Currency Revolving Commitment
Percentage.


 


“Revolving Committed
Amount” means the collective reference to the Dollar Revolving Committed
Amount and the Approved Currency Revolving Committed Amount.


 


“Revolving Facility”
means the Dollar Revolving Facility or the Approved Currency Revolving Facility
and “Revolving Facilities” means, collectively, the Dollar Revolving
Facility and the Approved Currency Revolving Facility.


 


“Revolving Lender”
means a Dollar Revolving Lender or an Approved Currency Revolving Lender and “Revolving
Lenders” means the collective reference to Dollar Revolving Lenders and
Approved Currency Revolving Lenders.


 


“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 Loan”
means a Dollar Revolving Loan or an Approved Currency Revolving Loan and “Revolving
Loans” means, collectively, Dollar Revolving Loans and Approved Currency
Revolving Loans.


 


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


 


33

















 


“Revolving Obligations”
means the collective reference to the Dollar Revolving Obligations and the
Approved Currency Revolving 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 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.


 


“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 10.75% Senior Notes due 2016 in an aggregate principal amount of
$300.0 million to be issued on or prior to the Funding Date and any exchange
notes issued in exchange therefor pursuant to the registration rights agreement
executed in connection with the issuance thereof.


 


34

















 


“Separation Agreement”
means the Separation Agreement to be dated on or prior to the Spin-Off Date
among Interval Leisure Group, Inc., HSN, Inc., Tree.com, the Borrower
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.


 


“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 the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such
capacity 


 


35

















 


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. (x) New
York time, in the case of Canadian Dollars, or (y) London time, in the
case of any other currency, in each case 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 the L/C Issuer may obtain such spot rate from
another financial institution designated by the Administrative Agent or the L/C
Issuer if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further that the L/C
Issuer may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Letter of Credit denominated in
an Alternative Currency.


 


“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) 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.


 


36














 


“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.


 


“Swap Contract”
means any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.


 


“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).


 


37

















 


“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 JPMCB 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 2.13-3


 


“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 A Commitment Fee”
has the meaning provided in Section 2.09.


 


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


 


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


 


“Term A Loan
Commitment Percentage” means, for each Term A 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 A Loan, and the denominator of which
is the Outstanding Amount of the Term A Loans. 
The initial Term A Loan Commitment Percentages are set forth on Schedule
2.01.


 


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


 


38

















 


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


 


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


 


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


 


“Term B Commitment Fee”
has the meaning provided in Section 2.09.


 


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


 


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


 


“Term B Loan
Commitment Percentage” means, for each Term B 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 B Loan (including any Incremental Term
Loans that are Term B Loans), and the denominator of which is the Outstanding
Amount of the Term B Loans (including any Incremental Term Loans that are Term
B Loans).  The initial Term B Loan
Commitment Percentages are set forth on Schedule 2.01.


 


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


 


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


 


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


 


“Term B Note”
means the promissory notes substantially in the form of Exhibit 2.13-5,
if any, given to evidence the Term B Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced.


 


“Term Loan Commitments”
means the Term A Loan Commitment and the Term B Loan Commitment.


 


“Term Loan Lenders”
means the Term A Lenders and the Term B Lenders.


 


“Term Loans” means
the Term A Loans and the Term B Loans.


 


39

















 


“Transactions”
means the borrowing of the Term A Loans and the Term B 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.


 


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


 


“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.


 


B.                                     Interpretative Provisions.


 


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


 


1.        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 


 


40





















 


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.


 


2.        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.”


 


3.        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.


 


C.                                     Accounting Terms and Provisions.


 


1.          As used herein, “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 this 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 set forth in Section 6.05.  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.


 


2.          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 


 


41

















 


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.


 


3.          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.


 


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


 


D.                                    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).


 


E.                                      Times of Day.


 


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


 


F.                                      Exchange Rates; Currency Equivalents.


 


1.          The Administrative Agent or the 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 


 


42

















 


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 the L/C
Issuer, as applicable.


 


2.          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 L/C Issuer, as the
case may be.


 


G.                                     Additional Alternative Currencies.


 


The Borrower may from
time to time request that an additional currency be added as “Alternative
Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible
into Dollars.  Such request shall be
subject to the approval of the Administrative Agent and each Approved Currency
Revolving Lender; provided that if such “Alternative Currency” is to be
used for Letters of Credit only, such request shall be subject only to the
approval of the Administrative Agent and the L/C Issuer.


 


H.                                    Additional Borrowers.


 


Notwithstanding anything
in Section 11.01 to the contrary, following the Funding Date, with
the consent of the Borrower, each Approved Currency Revolving Lender and the
Administrative Agent (but without the consent of any other Lender), this Credit
Agreement and the other Credit Documents may be amended to add one or more
Foreign Subsidiaries of the Borrower as additional borrowers under the Approved
Currency Revolving Facility.  Any
obligations in respect of borrowings by any Foreign Subsidiary under the Credit
Agreement will constitute “Obligations” and “Secured Obligations” for all
purposes of the Credit Documents and any such amendment may require such
Foreign Subsidiary to provide additional collateral (but solely for the
obligations of such Foreign Subsidiary hereunder).  Any such amendment may also affect any other
amendments to this Credit Agreement (including, without limitation, amendments
to Section 3.01 of this Credit Agreement and the definition of
“Excluded Taxes”) and the other Credit Documents as are consented to by the
Administrative Agent, the Borrower and each Approved Currency Revolving Lender
as may be reasonably necessary or appropriate to appropriately include such
Foreign Subsidiary as a Borrower hereunder (provided that no such
amendment shall adversely affect the rights of any Lender that has not
consented to such amendment in any material respect).


 


I.                                         Change of Currency.


 


1.          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 


 


43

















 


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


 


2.          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.


 


3.          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.


 


J.                                        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.


 


II.


 


COMMITMENTS AND
CREDIT EXTENSIONS


 


A.                                   Commitments.


 


Subject
to the terms and conditions set forth herein:


 


1.             Revolving Loans.


 


(i)       Dollar Revolving Loans.  Following the Funding Date, each Dollar
Revolving Lender severally agrees to make revolving credit loans (the “Dollar
Revolving Loans”) in Dollars 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 Dollar Revolving Loan, (x) with respect to
the Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar
Revolving Obligations shall not exceed ONE HUNDRED MILLION DOLLARS
($100,000,000) (as such amount may be increased pursuant to Section 2.01(g)
or decreased pursuant to Sections 2.07 or 9.02(a), the “Aggregate
Dollar Revolving Committed Amount”) and (y) with respect to each
Dollar Revolving Lender individually, such Lender’s Dollar Revolving Commitment
Percentage of Dollar Revolving Obligations shall not exceed its respective
Dollar Revolving Committed Amount. 
Dollar Revolving Loans may consist of Base Rate Loans, Eurodollar Rate
Loans or a combination thereof, as the Borrower may request.  Dollar Revolving Loans may be repaid and
reborrowed 


 


44





















 


in accordance with the provisions hereof.  Notwithstanding anything contained herein, no
Dollar Revolving Loans in excess of $25.0 million in the aggregate may be
borrowed prior to completion of the Spin-Off.


 


(ii)      Approved Currency Revolving Loans.  Following the Funding Date, each Approved
Currency Revolving Lender severally agrees to make revolving credit loans (the
“Approved Currency 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 Approved
Currency Revolving Loan, (x) with respect to the Approved Currency
Revolving Lenders collectively, the Outstanding Amount of Approved Currency
Revolving Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as
such amount may be increased pursuant to Section 2.01(g) or
decreased in accordance with the Sections 2.07 or 9.02(a), the “Aggregate
Approved Currency Revolving Committed Amount”) and (y) with respect to
each Approved Currency Revolving Lender individually, such Lender’s Approved
Currency Revolving Commitment Percentage of Approved Currency Revolving Loans
shall not exceed its respective Approved Currency Revolving Committed
Amount.  Approved Currency Revolving
Loans denominated in Dollars or Canadian Dollars may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereof, as the Borrower may
request.  Approved Currency Revolving
Loans denominated in an Alternative Currency (other than Canadian Dollars) must
consist of Eurodollar Rate Loans. 
Approved Currency Revolving Loans may be repaid and reborrowed in
accordance with the provisions hereof. 
Notwithstanding anything contained herein, no Revolving Loans in excess
of $25.0 million in the aggregate may be borrowed prior to completion of
the Spin-Off.


 


2.          Letters of Credit. 
On and after the Funding Date, (x) each L/C Issuer, in reliance
upon the commitments of the Dollar Revolving Lenders set forth herein, 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 or BCV, 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 or BCV 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 and BCV) 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) the Dollar Revolving Lenders severally
agree to purchase from the L/C Issuer a participation interest in Letters of
Credit issued hereunder in an amount equal to such Dollar Revolving Lender’s
Dollar Revolving Commitment Percentage thereof; provided that (A) the
Outstanding Amount of L/C Obligations shall not exceed TWENTY MILLION DOLLARS
($20,000,000) (as such amount may be decreased in accordance with the
provisions hereof, the “L/C Sublimit”), (B) with regard to the
Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar
Revolving Obligations shall not exceed the Aggregate Dollar Revolving Committed
Amount, (C) with regard to each Dollar Revolving Lender individually, such
Dollar Revolving Lender’s Dollar Revolving Commitment Percentage of Dollar
Revolving Obligations shall not exceed its respective Dollar Revolving
Committed Amount and (D) the Outstanding Amount of L/C Obligations for the
account of BCV shall not exceed $3,500,000. 
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 


 


45

















 


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.


 


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


 


4.          Term A Loan. 
Each of the Term A Lenders severally agrees to make its portion of the
term A loans (in the amount of its respective Term A Loan Committed Amount) to the
Borrower on the Funding Date in a single advance in Dollars in an aggregate
principal amount for all Term A Lenders of ONE HUNDRED MILLION DOLLARS
($100,000,000) (the “Term A Loans”).  The Term A Loans may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may
request.  Amounts repaid on the Term A
Loans may not be reborrowed.


 


5.          Term B Loan. 
Each of the Term B Lenders severally agrees to make its portion of the
term B loans (in the amount of its respective Term B Loan Committed Amount) to
the Borrower on the Funding Date in a single advance in Dollars in an aggregate
principal amount for all Term B Lenders of THREE HUNDRED FIFTY MILLION
DOLLARS ($350,000,000) (the “Term B Loans”).  The Term B Loans may consist of Base Rate
Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may
request.  Amounts repaid on the Term B
Loans may not be reborrowed.


 


6.          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(g) (the “Incremental Revolving
Commitments”), or establishing new term loans hereunder as provided in Section 2.01(h) (the
“Incremental Term Loans”); provided that:


 


46














 


(i)                  the aggregate principal amount of loans
and commitments for all the Incremental Loan Facilities established after the
Funding Date will not exceed $125.0 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 5.02
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.


 


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.


 


7.                                       Establishment of Incremental Revolving
Commitments.  Subject to Section 2.01(f), the
Borrower may establish Incremental Revolving Commitments by increasing the Aggregate
Dollar Revolving Committed Amount or Aggregate Approved Currency 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 Dollar
Revolving Committed Amount (whether or not an existing Dollar Revolving Lender)
shall be reasonably acceptable to the L/C Issuer;


 


(ii)               Persons providing commitments for the
Incremental Revolving Commitments pursuant to this Section 2.01(g) 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 under the applicable Revolving Facility, either (x) the
Borrower will pre-pay


 


47

















 


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 Revolving Loans then outstanding 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 Dollar Revolving Commitments or Approved Currency
Revolving Commitments, as the case may be, 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.


 


8.                                       Establishment of Incremental Term Loans. 
Subject to Section 2.01(f), the Borrower may, at any time,
establish additional term loan commitments (including additional commitments
for Term B Loans), provided that:


 


(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(h) 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 B Loan Termination
Date;


 


(v)              the Applicable Percentage (which for the
purposes of this Section 2.01(h) being deemed to include any
similar interest margin measure) for any proposed Incremental Term Loans shall
be determined by the 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 B Loans (other
than such Incremental Term Loans), then the Applicable Percentage for all Term
B Loans (other than such Incremental Term Loans) shall be increased to the
extent necessary so that the Applicable Percentage for the Term B Loans (other
than such Incremental Term Loans) is equal to the Applicable Percentage for the
proposed Incremental Term Loans; provided, further, that 


 


48

















 


in determining the
Applicable Percentage applicable to the Term B 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 B 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 B 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 A
Loans and Term B Loans); provided that, to the extent that such terms
and documentation are not consistent with the Term B Loans (except to 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 B
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.


 


B.                                     Borrowings, Conversions and
Continuations.


 


1.                                       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 by delivery to the Administrative Agent of a written Loan Notice appropriately
completed and signed by a Responsible Officer of the Borrower.  Each such notice must be received by the
Administrative Agent not later than 12:00 noon (New York time) (i) with
respect to Eurodollar Rate Loans, three (3) Business Days (or, in the case
of Approved Currency Revolving Loans denominated in Alternative Currency, four (4) Business
Days) prior to the requested date of, (ii) with respect to Base Rate Loans
denominated in Dollars, on the requested date of or (iii) in the case of
Base Rate Loans denominated in Canadian Dollars, one Business Day prior to the
requested date of, any Borrowing, conversion or continuation.  Except in the case of any Revolving Loan that
is borrowed to refinance a Swingline Loan or L/C Borrowing


 


49





















 


(which may be in an amount sufficient to refinance such Swingline Loan
or L/C Borrowing), 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, (ii) with
respect to Base Rate Loans denominated in Dollars, $1,000,000 or a whole
multiple of $100,000 in excess thereof or (iii) in the case of Base Rate
Loans denominated in Canadian Dollars, C$1,000,000 or an integral multiple of
C$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, Term A Loans or Term B
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 Approved Currency
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 Approved Currency Revolving Loans denominated in an Alternative Currency
other than Canadian Dollars), 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, 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.


 


2.                                       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 2:00 p.m. (London time) on the Business Day specified in
the applicable Loan Notice.  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 JPMCB 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.


 


3.                                       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 


 


50





















 


the request of the Required Lenders or the Administrative Agent, (i) no
Loan denominated in Dollars or Canadian Dollars may be requested as, converted
to or continued as a Eurodollar Rate Loan and (ii) any outstanding
Eurodollar Rate Loan denominated in Dollars or Canadian Dollars shall be
converted to a Base Rate Loan on the last day of the Interest Period with
respect thereto.


 


4.                                       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 JPMCB’s or JPMorgan Chase Bank, N.A., Toronto
Branch’s prime rate used in determining the Base Rate promptly following the
public announcement of such change.


 


5.                                       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 A Loans and
Term B Loans.


 


C.                                     Additional Provisions with Respect to
Letters of Credit.


 


1.                                       Obligation to Issue or Amend.


 


1)                   The L/C Issuer shall not issue any Letter of Credit
if:


 


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 the L/C Issuer have approved such expiry date; or


 


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


 


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


 


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


 


51





















 


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


 


except as
otherwise agreed by the L/C Issuer and the Administrative Agent, such Letter of
Credit is in an initial stated amount less than $20,000;


 


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


 


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


 


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


 


3)                   The L/C Issuer shall not be under any obligation to
amend any Letter of Credit if:


 


the L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof; or


 


the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.


 


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


 


2.                                       Procedures for Issuance and Amendment;
Auto-Extension Letters of Credit.


 


5)                   Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower delivered to the
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
L/C Issuer and the Administrative Agent (A) not later than 12:00 noon (New
York time) at least two (2) Business Days 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 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 L/C
Issuer and the Administrative Agent may agree in a particular instance in their
sole discretion) prior to 


 


52

















 


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 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 thereunder; and (G) such other matters
as the 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 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 the L/C Issuer may
reasonably require.  Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


6)                   Promptly after receipt of any L/C
Application, the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
such L/C Application from the Borrower and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. 
Unless the L/C Issuer has received written notice from the
Administrative Agent, any Dollar 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,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or Subsidiary or BCV) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s
usual and customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Dollar
Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to such Dollar Revolving Lender’s Dollar Revolving
Commitment Percentage thereof.


 


7)                   If the Borrower so requests in any L/C
Application, the 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 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 L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such extension.  Once an
Auto-Extension Letter of Credit has been issued, the Dollar Revolving Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later
than the L/C Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted or would have no obligation


 


53

















 


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 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 the L/C Issuer not to permit
such extension.


 


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


 


3.                                       Drawings and Reimbursements; Funding of
Participations.


 


9)                   Upon any drawing under any Letter of
Credit, the 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 L/C Issuer in
Dollars.  In the case of a Letter of
Credit denominated in an Alternative Currency, the Borrower shall reimburse the
L/C Issuer in such Alternative Currency unless (x) the L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement
in Dollars, or (y) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly
following receipt of the notice of drawing that the Borrower will reimburse the
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 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 (x) 12:00 noon (New York
time) on or prior to the date that is three (3) Business Days following
the date that the Borrower receives notice from the L/C Issuer of any payment
by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, and (y) the
Applicable Time on or prior to the date that is three (3) Business Days
following the date the Borrower receives notice from the L/C Issuer of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date of payment by the L/C Issuer under a
Letter of Credit, an “Honor Date”), the Borrower shall reimburse the 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 does not to reimburse the L/C
Issuer on the Honor Date, the Administrative Agent, at the request of the L/C
Issuer, shall promptly notify each Dollar Revolving Lender of the Honor Date,
the amount and denomination of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof) (the “Unreimbursed Amount”),
and the amount of such Dollar Revolving Lender’s Dollar Revolving Commitment
Percentage thereof.


 


10)             Each Dollar 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 L/C Issuer, in Dollars at
the Administrative Agent’s Office for payments in Dollars in an amount equal to
its 


 


54

















 


Dollar Revolving Commitment Percentage of the Unreimbursed Amount not
later than 1:00 p.m. (New York time) on the Business Day specified in such
notice by the Administrative Agent.


 


11)             With respect to any Unreimbursed Amount,
the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest
at (i) through and including the third Business Day following the Honor
Date, the rate of interest applicable to Base Rate Revolving Loans and (ii) thereafter,
the Default Rate.  In such event, each
Dollar Revolving Lender’s payment to the Administrative Agent for the account
of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 2.03.


 


12)             Until a Revolving Lender funds its L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C
Issuer for any amount drawn under any Letter of Credit, interest in respect of
such Revolving Lender’s Dollar Revolving Commitment Percentage of such amount
shall be solely for the account of the L/C Issuer.


 


13)             Each Dollar Revolving Lender’s obligation
to make L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such Revolving Lender may have against the 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) 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 the 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 the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.


 


14)             If any Dollar Revolving Lender fails to
make available to the Administrative Agent for the account of the L/C Issuer
any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
to recover from such 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 L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing.  If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s L/C Advance in respect of the relevant L/C Borrowing.  A certificate of the L/C Issuer submitted to
any Dollar Revolving Lender or Approved Currency Revolving Lender, as
applicable, (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.


 


55

















 


4.                                       Repayment of Participations.


 


15)             At any time after the L/C Issuer has made
a payment under any Letter of Credit and has received from any Dollar 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 the 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 Dollar 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 Dollars and in the same type of funds as those received by the
Administrative Agent.


 


16)             If any payment received by the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Dollar Revolving Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Dollar 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.


 


5.                                       Obligations Absolute. 
The obligation of the Borrower to reimburse the L/C Issuer for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this 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, any Subsidiary or BCV may
have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may
be acting), the L/C Issuer or any other Person, whether in connection with this
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 the L/C Issuer under such
Letter of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person


 


56





















 


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, any Subsidiary or BCV 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, any Subsidiary or BCV.


 


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 L/C Issuer.  The Borrower shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.


 


6.                                       Role of the L/C Issuer in such Capacity. 
Each Revolving Lender and the Borrower agrees that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Revolving
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Required Dollar 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 Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (vi) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower shall have a claim against the L/C Issuer, and
the 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 the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument


 


57





















 


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.


 


7.                                       Cash Collateral. 
Upon the request of the Administrative Agent, (i) if the L/C Issuer
has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in a 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, “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the 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 the 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.


 


8.                                       Applicability of ISP. 
Unless otherwise expressly agreed by the 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.


 


9.                                       Letters of Credit Issued for Subsidiaries
and BCV.  Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, BCV or any Subsidiary of the Borrower, the Borrower shall be
obligated to reimburse the 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 and BCV inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of
such Subsidiaries and BCV.


 


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


 


11.                                 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.


 


D.                                    Additional Provisions with Respect to
Swingline Loans.


 


1.                                       Borrowing Procedures. 
Each Swingline Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swingline Lender and the Administrative Agent 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.  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, 


 


58





















 


which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. 
Promptly after receipt by the Swingline Lender of any 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 Borrower at its office by
crediting the account of the Borrower on the books of the Swingline Lender in
immediately available funds.


 


2.                                       Refinancing.


 


17)             The Swingline Lender at any time in its
sole and absolute discretion may (and, in any event, within ten Business Days
of the applicable Swingline Borrowing, shall) request that each Revolving
Lender fund its risk participations in Swingline Loans in an amount equal to
such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage of
Swingline Loans then outstanding.  Each
Dollar Revolving Lender shall make an amount equal to its Dollar Revolving
Commitment Percentage of the amount specified in such 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 1:00 p.m.
(New York time) on the day specified in such notice.  The Administrative Agent shall remit the
funds so received to the Swingline Lender.


 


18)             Each Dollar Revolving Lender’s funding of
its risk participation in the relevant Swingline Loan and each Dollar 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.


 


19)             If any Dollar 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 Dollar 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 Dollar 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 funded participation in the relevant Swingline Loan.  A certificate of the Swingline Lender
submitted to any Dollar Revolving Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.


 


59














 


20)    Each
Dollar Revolving Lender’s obligation 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 Dollar 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.


 


3.             Repayment
of Participations.


 


21)    At
any time after any Dollar 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
Dollar Revolving Lender its Dollar Revolving Commitment Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Dollar Revolving Lender’s risk participation
was funded) in the same funds as those received by the Swingline Lender.


 


22)    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
Dollar Revolving Lender shall pay to the Swingline Lender its Dollar 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 Dollar Revolving
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Credit Agreement.


 


4.             Interest
for Account of Swingline Lender.  The
Swingline Lender shall be responsible for invoicing the Borrower for interest
on the Swingline Loans.  Until each
Dollar Revolving Lender funds its risk participation pursuant to this Section 2.04
of any Swingline Loan, interest in respect thereof shall be solely for the
account of the Swingline Lender.


 


5.             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.


 


E.             Repayment of Loans.


 


1.             Revolving
Loans.  The Borrower shall repay to
the Dollar Revolving Lenders the Outstanding Amount of Dollar Revolving Loans
on the Revolving Termination Date.   The
Borrower shall repay to the Approved Currency Revolving Lenders the Outstanding
Amount of Approved Currency Revolving Loans on the Revolving Termination Date.


 


60

















 


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


 


3.             Term
A Loans.  The Borrower shall repay
the aggregate principal amount of the Term A Loans (shown as a percentage of
the original aggregate principal amount of the Term A 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, 2011

  	
   

  	
  2.5

  	
  %

  	
  December 31, 2012

  	
   

  	
  3.75

  	
  %

  
	
  June 30, 2011

  	
   

  	
  2.5

  	
  %

  	
  March 31, 2013

  	
   

  	
  25.00

  	
  %

  
	
  September 30, 2011

  	
   

  	
  2.5

  	
  %

  	
  June 30, 2013

  	
   

  	
  25.00

  	
  %

  
	
  December 31, 2011

  	
   

  	
  2.5

  	
  %

  	
  Term A Loan

  	
   

  	
  25.00

  	
  %

  
	
  March 31, 2012

  	
   

  	
  3.75

  	
  %

  	
  Termination Date

  	
   

  	
   

  	
   

  
	
  June 30, 2012

  	
   

  	
  3.75

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2012

  	
   

  	
  3.75

  	
  %

  	
   

  	
   

  	
   

  	
   

  



 


4.             Term
B Loans.  The principal amount of the
Term B Loans shall be payable in eleven consecutive quarterly installments
which, except for the final installment (which shall be due and payable on the
Term B Loan Termination Date), shall be due on the last day of each March,
June, September and December, beginning with March 31, 2011.  Each of the first ten quarterly installments
shall be in the principal amount equal to 0.25% of the aggregate principal
amount of all Term B Loans funded on the Funding Date and the eleventh (11th)
and final installment shall be due and payable on the Term B Loan Termination
Date in the amount of the remaining principal balance of Term B Loans.


 


F.             Prepayments.


 


1.             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 12:00 noon
(New York time) by the Administrative Agent at least three (3) Business
Days (or, in the case of Approved Currency Revolving Loans denominated in
Alternative Currency other than Base Rate Loans denominated in Canadian
Dollars, 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 (u) $1.0 million and integral
multiples of $1.0 million in excess thereof, in the case of Eurodollar Rate
Loans denominated in Dollars, (v) €1.0 million and integral multiples of
€1.0 million


 


61

















 


in excess thereof, in the
case of Eurodollar Rate Loans denominated in Euros, (w) £1.0 million and
integral multiples of £1.0 million in excess thereof, in the case of Eurodollar
Rate Loans denominated in Sterling, (x) 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, (y) C$1,000,000 and integral
multiples of C$100,000 in excess thereof, in the case of Base Rate Loans
denominated in Canadian Dollars and (z) $1,00,000 and integral multiples
of $100,000 in excess thereof, in the case of Base Rate Loans denominated in
Dollars, 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 1:00 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.


 


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


 


(i)      Revolving
Commitments.


 


                If
at any time (1) the Outstanding Amount of Dollar Revolving Obligations
shall exceed the Aggregate Dollar Revolving Committed Amount, (2) the Outstanding
Amount of Approved Currency Revolving Loans shall exceed the Aggregate Approved
Currency Revolving Committed Amount, or (3) the Outstanding Amount of
Swingline Loans shall exceed the Swingline Sublimit, immediate prepayment will
be made on or in respect of the applicable 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.


 


                If
the Administrative Agent notifies the Borrower at any time that the Outstanding
Amount of all L/C Obligations 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 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


 


62

















 


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 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 


 


63

















 


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.


 


(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.


 


3.             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 A Loans or Term B
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 A Loans under Section 2.05(c) or Term B Loans
under Section 2.05(d), as applicable, within the twelve (12) 


 


64

















 


months following such
prepayment, and second pro rata to the remaining principal amortization installments
under Section 2.05(c) or Section 2.05(d) on
the Term A Loans or Term B 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.


 


(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) first to the Term A Loans and Term B Loans (pro rata based
on the amount of each such tranche of Loans then outstanding), and with respect
to (x) Term A Loans, first in direct order of maturity in respect of the
principal amortization payments under Section 2.05(c) due on
the Term A 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 A Loans, until paid in full, (y) Term B Loans, first in direct
order of maturity in respect of the principal amortization payments under Section 2.05(d) due
on the Term B Loans within the twelve (12) months following such prepayment,
and second pro rata to the remaining principal amortization installments under Section 2.05(d) on
the Term B 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 A Loan Commitments and Term B
Loan Commitments and second to reduce the Revolving Commitments.


 


G.            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 12:00 noon (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 


 


65

















 


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.


 


H.            Interest.


 


1.             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
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.


 


I.              Fees.


 


1.             Facility
Fee; Commitment Fee.  The Borrower
shall pay to the Administrative Agent for the account of each (w) Dollar
Revolving Lender in accordance with its Dollar Revolving Commitment Percentage
thereof, a facility fee (the “Dollar Revolving Facility Fee”) equal to
0.50% per annum of the actual daily amount of the Aggregate Dollar Revolving Committed
Amount, (x) Approved Currency Revolving Lender in accordance with its
Approved Currency Revolving Commitment Percentage thereof, a facility fee (the “Approved
Currency Revolving Facility Fee” and together with the Dollar Revolving
Facility Fee, the “Facility Fees”) equal to 0.50% per annum of the
actual daily amount of the Aggregate Approved Currency Revolving Committed
Amount, (y) Term A Lender in accordance with its Term A Loan Commitment
Percentage thereof, a commitment fee (the “Term A Commitment Fee”)
equal to 0.50% per annum of the actual daily amount of the Aggregate Term A
Loan Committed Amount during the period between the Closing Date and the
Funding Date and (z) Term B Lender, in accordance with its Term B Loan
Percentage thereof, a commitment fee (the “Term B Commitment Fee” and
together with the Term A Commitment Fee, the “Commitment Fees”) equal to
3.25% per annum 


 


66

















 


of the actual daily amount of the Aggregate Term B 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 Dollar
Revolving Committed Percentage or Approved Currency Revolving Committed
Percentage thereof, as the case may be, of the actual daily amount of the
Aggregate Dollar Revolving Committed Amount or Aggregate Approved Currency
Revolving Committed Amount (without giving effect to the expiration of such
Commitment Period), as the case may be, 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 Fees 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.


 


2.             Letter
of Credit Fees.


 


23)    Letter
of Credit Fees.  The Borrower shall
pay to the Administrative Agent, for the account of each Dollar Revolving
Lender in accordance with its Dollar Revolving Commitment Percentage, a Letter
of Credit fee, in Dollars, for each Letter of Credit, an amount equal to the
Applicable Percentage for Dollar Revolving Loans that are Eurodollar Loans
multiplied by the daily maximum undrawn Outstanding Amount under such Letter of
Credit (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 1.10. 
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.


 


24)    Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter 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


 


67

















 


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 1.10.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


3.             Funding
Fee.  On the Funding Date, the
Borrower shall pay to the Administrative Agent for the account of (i) each
Term B Lender a fee equal to 1.50% of its Term B Loan Commitment and (ii) each
other Lender, the fees set forth on Schedule 2.09(c).


 


4.             Other
Fees.  The Borrower shall pay to
JPMCB, the Lead Arrangers, Wachovia Bank, N.A., Barclays Bank PLC, Wachovia
Capital Markets, LLC, Barclays Capital, Bank of America, N.A., Merrill Lynch
Bank USA and Morgan Stanley Senior Funding, for their own respective accounts,
fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


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.


 


J.             Computation of
Interest and Fees.


 


All
computations of interest for Base Rate loans denominated in Canadian Dollars
and Base Rate Loans denominated in Dollars when the Base Rate is determined by
JPMCB’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.


 


K.            Payments Generally;
Administrative Agent’s Clawback.


 


1.             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.


 


68

















 


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 3:00 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 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.


 


2.             (i) 
Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed time 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 the 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 the 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 


 


69

















 


Lenders
or the 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 the 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.


 


3.             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 return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


4.             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).


 


5.             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.


 


6.             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.


 


L.             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) 


 


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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).


 


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.


 


M.           Evidence of Debt.


 


1.             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.


 


2.             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 


 


71

















 


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.


 


3.             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.


 


N.            CAM Exchange.


 


1.             On
the Revolving CAM Exchange Date, (i) the Revolving Commitments shall
automatically and without further act be terminated in accordance with Section 9.02;
(ii) each Dollar Revolving Lender shall fund its participation in any
outstanding Swingline Loans in accordance with Section 2.04(b); (iii) each
Dollar Revolving Lender shall fund its L/C Advance in any outstanding L/C
Borrowings; and (iv) the Revolving Lenders shall purchase at par (and in
the currencies in which such Designated Revolving Obligations are denominated)
interests in the Designated Revolving Obligations under each Revolving Facility
(and shall make payments to the Administrative Agent for reallocation to other
Revolving Lenders to the extent necessary to give effect to such purchase) and
shall assume the obligations to reimburse the L/C Issuer for L/C Borrowings
under the Dollar Revolving Facility such that, after giving effect to such payments,
each Revolving Lender shall own an interest equal to such Revolving Lender’s
Revolving CAM Percentage in the Designated Revolving Obligations under each
Revolving Facility and shall have the obligation to reimburse the L/C Issuer
for its Revolving CAM Percentage of each L/C Borrowing under the Dollar
Revolving Facility.  Each Revolving
Lender and each Person acquiring a participation from any Revolving Lender as
contemplated by Section 11.06 hereby consents and agrees to the
Revolving CAM Exchange.  Each of the
Revolving Lenders agrees from time to time to execute and deliver to the
Administrative Agent all such promissory notes and other instruments and
documents as the Administrative Agent shall reasonably request to evidence and
confirm the respective interests and obligations of the Revolving Lenders after
giving effect to the Revolving CAM Exchange, and each Revolving Lender agrees
to surrender any promissory notes originally received by it in connection with
its Revolving Loans under this Credit Agreement to the Administrative Agent
against delivery of any promissory notes so executed and delivered; provided
that the failure of any Revolving Lender to deliver or accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of
the Revolving CAM Exchange.


 


2.             As
a result of the Revolving CAM Exchange, from and after the Revolving CAM Exchange
Date, each payment received by the Administrative Agent pursuant to any Credit
Document in respect of the Designated Revolving Obligations shall be
distributed to the Revolving Lenders on a pro rata basis in accordance with
their respective Revolving CAM Percentages.


 


3.             In
the event that on or after the Revolving CAM Exchange, an L/C Borrowing is made
under any Letter of Credit under the Dollar Revolving Facility that is not
reimbursed by the Borrower, each Revolving Lender shall provide its L/C Advance
to the L/C Issuer for its Revolving CAM Percentage of such L/C Borrowing.


 


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III.


 


TAXES, YIELD
PROTECTION AND ILLEGALITY


 


A.                                   Taxes.


 


1.          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 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.


 


2.          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.


 


3.          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 the 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 the 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 the L/C Issuer (with a
copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.  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.


 


4.          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 


 


73

















 


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.


 


5.          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
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


 


74

















 


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 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.


 


6.          Treatment of Certain Refunds.  If the Administrative Agent, any Lender or
the 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
the L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of the Administrative
Agent, such Lender or the 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 the L/C Issuer in the event the Administrative Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make
available its Tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.  Notwithstanding anything to the contrary, in
no event will any Lender or L/C Issuer


 


75

















 


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.


 


B.                                     Illegality.


 


If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the 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.


 


C.                                     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.


 


D.                                    Increased Cost; Capital Adequacy.


 


1.          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 


 


76

















 


the account of, or credit
extended or participated in by, any Lender (except any reserve requirement
reflected in the Adjusted Eurodollar Rate) or the L/C Issuer;


 


(ii)        subject any Lender or the L/C Issuer to
any tax of any kind whatsoever with respect to this 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 the 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 the L/C Issuer); or


 


(iii)       impose on any Lender or the L/C Issuer or
the London interbank market any other condition, cost or expense affecting this
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 the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


 


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


 


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


 


4.          Delay in Requests.  Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a 


 


77

















 


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


 


E.                                      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:


 


1.        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


 


2.        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


 


3.        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.


 


F.                                      Mitigation Obligations; Replacement of
Lenders.


 


1.          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 


 


78

















 


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.


 


2.          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.


 


3.          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.


 


G.                                     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.


 


H.                                    Additional Reserve Costs.


 


1.          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.


 


2.          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 


 


79

















 


rate per annum specified by such Lender to be
the cost to such Lender of complying with such requirements in relation to such
Loan.


 


3.          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.


 


IV.


 


GUARANTY


 


A.                                   The Guaranty.


 


1.          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.


 


2.          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.


 


B.                                     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 


 


80

















 


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:


 


1.        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;


 


2.        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;


 


3.        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;


 


4.        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


 


5.        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.


 


C.                                     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



 


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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 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.


 


D.                                    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.


 


E.                                      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


 


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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.


 


F.                                      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 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.


 


G.                                     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.


 


H.                                    Joint and Several Liability of the
Borrower.


 


The
Borrower shall be jointly and severally liable for all Obligations of any Foreign
Subsidiary that becomes an additional borrower hereunder in accordance with Section 1.08.


 


V.


 


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS


 


A.                                   Conditions to Closing Date.


 


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


 


1.        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.


 


2.        [Reserved.]


 


3.        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:


 


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(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


 


(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.


 


4.      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.


 


5.      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.


 


B.                                     Conditions to the Funding Date.


 


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


 


1.      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.


 


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2.      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 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.


 


3.      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);


 


(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), 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).


 


4.      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 the
Credit Documents.


 


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5.      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.


 


6.      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


 


(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.


 


7.      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.


 


8.      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, 


 


86





















 


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.


 


9.      Financial Statements. 
Copies of the financial statements referred to in Section 6.05.


 


10.    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.


 


11.    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.


 


12.    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.


 


13.    Senior Notes.  The Borrower shall have consummated the
issuance of the Senior Notes.


 


14.    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.


 


15.    Schedule.  The Borrower shall have delivered to the
Administrative Agent Schedule 7.08.


 


16.    Funding Date.  The Funding Date shall have occurred on or
prior to September 30, 2008.


 


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C.                                     Conditions to All Credit Extensions.


 


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


 


1.      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).


 


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


 


3.      The Administrative Agent and, if applicable, the 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.


 


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)):


 


A.                                   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 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.


 


B.                                     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 


 


88

















 


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 clause (b) or (c) of this Section 6.02
only, as would not reasonably be expected to have a Material Adverse Effect.


 


C.                                     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).


 


D.                                    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.


 


E.                                      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 sheets 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, or 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 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.


 


89

















 


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.


 


F.                                      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 any 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).


 


G.                                     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.


 


H.                                    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.


 


I.                                         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 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.


 


J.                                        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 


 


90

















 


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.


 


K.                                    ERISA Compliance.


 


1.        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.


 


2.        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.


 


3.        (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.


 


L.                                      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 


 


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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.


 


M.                                 Margin Regulations; Investment Company
Act.


 


1.        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.


 


2.        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.


 


N.                                    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.


 


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


 


P.                                      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.


 


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Q.                                    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.


 


R.                                     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.


 


S.                                      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 


 


93

















 


“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.


 


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:


 


A.                                   Financial Statements.


 


Deliver
to the Administrative Agent and each Lender:


 


1.      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 as at the
end of such fiscal year, and the related consolidated statements of income or
operations, invested 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 (1) 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 and (2) 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


 


2.      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, 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, invested equity and cash flows
for such fiscal quarter and 


 


94





















 


for the portion of the Borrower’s fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, invested 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 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.


 


B.                                     Certificates; Other Information.


 


Deliver
to the Administrative Agent and each Lender:


 


1.      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);


 


2.      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;


 


95














 


3.                                       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;


 


4.                                       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;


 


5.                                       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 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;


 


6.                                       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


 


7.                                       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 Section 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 and/or the Lead
Arrangers will make available to the Lenders and the 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 


 


96

















 


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, the Lead Arrangers
and the 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); (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 and the
Lead Arrangers 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.”


 


C.                                     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:


 


1.                                       the occurrence of any Default or Event of
Default; and


 


2.                                       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.


 


D.                                    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.


 


E.                                      Payment of Taxes and Other Obligations.


 


1.                                       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,


 


97





















 


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.


 


2.                                       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.


 


F.                                      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.


 


G.                                     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.


 


H.                                    Insurance.


 


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).


 


I.                                         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 


 


98

















 


of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary.


 


J.                                        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.


 


K.                                    Use of Proceeds.


 


Use
the proceeds of the Term A Loans and Term B 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
in excess of $25.0 million 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.


 


L.                                      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 (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 


 


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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.


 


M.                                 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 $5.0 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.


 


N.                                    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 


 


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the security interests therein, all in form and
substance reasonably satisfactory to the Administrative Agent.


 


O.                                    Further Assurances Regarding Collateral.


 


1.                                       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.


 


2.                                       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,
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” Federal Emergency Management Agency Standard Flood
Hazard Determinations (together with notices about special flood hazard area
status and flood disaster assistance duly executed by the Borrower and each
Loan Party relating thereto), evidence of insurance (including, without limitation,
flood insurance), legal opinions and other documents and certificates, in each
case, in form and substance reasonably satisfactory to the Administrative
Agent, as shall be reasonably requested by the Administrative Agent.


 


3.                                       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 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.


 


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P.                                      Post-Closing Matters.


 


1.                                       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.


 


2.                                       The Borrower
shall, no later than 90 days after the Funding Date (or up to thirty (30) days
later if the Administrative Agent, in its sole discretion, shall agree thereto
in writing), deliver to the Collateral Agent local law pledge agreements and
opinions of counsel (each in form and substance reasonably satisfactory to the
Collateral Agent) with respect to First-Tier Foreign Subsidiaries which (on a
consolidated basis with each of their Subsidiaries and when combined with each
First-Tier Foreign Subsidiary (on a consolidated basis with each of its Subsidiaries)
that is organized under the laws of Canada), account for at least 70.0% of the
total revenues of all Foreign Subsidiaries of the Borrower and at least 70.0%
of the total assets of all Foreign Subsidiaries of the Borrower (in each case
for the most recent fiscal quarter and as of the most recent date which the
Borrower then has such financial information available).


 


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:


 


A.                                   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:


 


1.                                       Liens created pursuant to the Credit
Documents;


 


2.                                       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;


 


3.                                       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);


 


4.                                       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;


 


5.                                       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));


 


6.                                       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);


 


7.                                       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);


 


8.                                       easements, rights-of-way, covenants,
conditions, restrictions (including zoning restrictions), declarations, rights
of reverter (other than with respect to Property subject to a Mortgage), 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;


 


9.                                       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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10.                                 licenses, sublicenses, leases or
subleases granted to others not interfering in any material respect with the
business of any member of the Consolidated Group;


 


11.                                 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;


 


12.                                 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;


 


13.                                 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;


 


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


 


15.                                 Liens on Property securing obligations
incurred under Section 8.03(h) (or any refinancing of such
Indebtedness 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 Indebtedness pursuant to Section 8.03(l), the
Property acquired with the proceeds of the Indebtedness so refinanced);


 


16.                                 other Liens, provided that such
Liens do not secure obligations in excess of $40.0 million;


 


17.                                 Liens in respect of any Indebtedness
permitted under Section 8.03(g) to the extent such Liens
extend only to Property of the Foreign Subsidiary or Foreign Subsidiaries
incurring such Indebtedness (other than a Foreign Subsidiary that is a borrower
under this Credit Agreement);


 


18.                                 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;


 


19.                                 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;


 


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


 


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21.                                 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;


 


22.                                 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;


 


23.                                 Liens securing insurance premiums financing
arrangements, provided, that such Liens are limited to the applicable unearned
insurance premiums; and


 


24.                                 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.


 


B.                                     Investments.


 


Make or permit to exist any Investments, except:


 


1.                                       cash and Cash Equivalents of or to be
owned by the Borrower or a Subsidiary;


 


2.                                       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;


 


3.                                       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;


 


4.                                       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;


 


105

















 


5.                                       except to the extent constituting an
Acquisition, Investments by the Borrower and Domestic Subsidiaries in Domestic
Credit Parties;


 


6.                                       Investments by the Borrower and Domestic
Subsidiaries in Foreign Subsidiaries in an aggregate amount at any time not to
exceed the greater of $75.0 million and 3.0% of Consolidated Total Assets at
such time;


 


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


 


8.                                       Support Obligations incurred pursuant to Section 8.03;


 


9.                                       Investments comprised of Permitted
Acquisitions;


 


10.                                 advances in the
ordinary course of
business to secure developer contracts of the Borrower and its Subsidiaries;


 


11.                                 Investments at any time outstanding in an
aggregate amount not to exceed $75.0 million 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);


 


12.                                 Investments representing non-cash
consideration received in connection with any Subject Disposition permitted
pursuant to Section 8.05;


 


13.                                 Investments contemplated by Section 8.12;


 


14.                                 Swap Contracts allowed by Section 8.03(d);


 


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


 


16.                                 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;


 


106














 


17.                                 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;


 


18.                                 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;


 


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


 


20.                                 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;


 


21.                                 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;


 


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


 


23.                                 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.


 


C.                                     Indebtedness.


 


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


 


1.                                       Indebtedness existing or arising under
this Credit Agreement and the other Credit Documents;


 


2.                                       Indebtedness 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;


 


3.                                       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 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 $50.0 million and 


 


107

















 


2.0% of Consolidated
Total Assets; provided that such Indebtedness when incurred shall not
exceed the purchase price of the asset(s) financed;


 


4.                                       obligations under Swap Contracts entered
into to manage existing or anticipated risks and not for speculative purposes;


 


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


 


6.                                       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 B Loans and has a
Weighted Average Life to Maturity that is no shorter than the Term B 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 B 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;


 


7.                                       Indebtedness of Foreign Subsidiaries and
guarantees thereof by other Foreign Subsidiaries, without duplication, in an
aggregate principal amount at any time outstanding not to exceed the greater of
$25.0 million and 1.0% of Consolidated Total Assets at such time (but not to
exceed, in any event, $40.0 million);


 


8.                                       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;


 


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9.                                       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;


 


10.                                 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 $40.0 million;


 


11.                                 Indebtedness incurred under the Senior Notes
and guarantees by the Guarantors thereof;


 


12.                                 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;


 


13.                                 overdrafts paid within 5 Business Days;


 


14.                                 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,
$15.0 million minus the aggregate L/C Obligations outstanding on such date;


 


15.                                 Indebtedness supported by a Letter of
Credit, in a principal amount not in excess of the stated amount of such Letter
of Credit;


 


16.                                 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;


 


17.                                 Indebtedness representing deferred
compensation to employees of the Borrower or any Subsidiary incurred in the
ordinary course of business;


 


18.                                 Indebtedness consisting of promissory
notes issued by the Borrower to current or former officers, directors and
employees, their respective estates, spouses or 


 


109

















 


former spouses issued in
exchange for the purchase or redemption by the Borrower of Qualified Capital
Stock permitted by Section 8.06(f);  provided that (a) the Borrower shall be able to make a
Restricted Payment pursuant to Section 8.06(f) in an amount
equal to the principal amount of each such note at the time such note is
issued, and an amount equal to the principal amount of each such note shall
reduce the amount of Restricted Payments able to be made under Section 8.06(f) and
(b) the Borrower shall be able to make a Restricted Payment pursuant to Section 8.06(f) in
the amount of any other payment on each such note at the time such payment is
made, and each such payment shall reduce the Restricted Payments available to
be able to be made under Section 8.06(f);


 


19.                                 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;


 


20.                                 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


 


21.                                 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.


 


D.                                    Mergers and Dissolutions.


 


1.                                       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


 


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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


 


(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.


 


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


 


E.                                      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 $50.0 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).


 


F.                                      Restricted Payments.


 


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


 


1.                                       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;


 


2.                                       Restricted Payments contemplated by Section 8.12
shall be permitted.


 


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


 


4.                                       [Reserved];


 


5.                                       the Borrower may declare and make
payments in respect of the IAC Dividend on or about the Funding Date;


 


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6.                                       the Borrower may make Restricted Payments
at any time in an aggregate amount not to exceed $50.0 million 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 Leverage Ratio would not be in excess of 3.00:1.00 (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;


 


7.                                       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
$100.0 million or (y) at any time following the date that no Term A Loans,
Term B Loans or Incremental Term Loans are outstanding;


 


8.                                       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;


 


9.                                       the members of the Consolidated Group may
prepay or repay intercompany Indebtedness otherwise permitted hereunder owed to
other members of the Consolidated Group; and


 


10.                                 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.


 


G.                                     Change in Nature of Business.


 


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


 


H.                                    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.


 


I.                                         Transactions with Affiliates.


 


Enter
into any transaction of any kind with any Affiliate of the Borrower (other than
between or among (x) 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, 


 


112

















 


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


 


J.                                        Financial Covenants.


 


1.                                       Consolidated Total Leverage Ratio. 
Permit the Consolidated Total Leverage Ratio as of the last day of any
fiscal quarter ending on or after September 30, 2008 to be greater than
3.5 to 1.0.


 


2.                                       Consolidated Interest Coverage Ratio. 
Permit the Consolidated Interest Coverage Ratio as of the last day of
any fiscal quarter ending on or after September 30, 2008 to be less than 3.0
to 1.0.


 


K.                                    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;


 


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(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
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.


 


L.                                      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.


 


M.                                 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(e) 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).


 


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IX.


 


EVENTS OF DEFAULT
AND REMEDIES


 


A.                                   Events of Default.


 


Any of the following shall constitute an Event of
Default:


 


1.                                       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 amount
of principal of any L/C Obligation, or (ii) within three (3) Business
Days after the same becomes due or required to be paid herein, 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


 


2.                                       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


 


3.                                       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


 


4.                                       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


 


5.                                       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 $20.0 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 


 


115

















 


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 $20.0 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 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 $20.0 million; or


 


6.                                       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


 


7.                                       Change of Control. 
There shall have occurred a Change of Control of the Borrower; or


 


8.                                       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


 


9.                                       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 $20.0 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


 


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10.                                 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 $20.0 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 $20.0
million; or


 


11.                                 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
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


 


12.                                 Collateral Documents. 
Any Collateral Document after delivery thereof pursuant to Section 5.02,
7.13 or 7.14 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).


 


B.                                     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:


 


1.                                       declare the Commitments of the Lenders
and the obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such Commitments and obligation shall be terminated;


 


2.                                       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;


 


3.                                       require that the Borrower Cash
Collateralize the L/C Obligations (in an amount equal to the then Outstanding
Amount thereof); and


 


4.                                       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;


 


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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 the L/C Issuer to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the 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.


 


C.                                     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 the 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 the 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.


 


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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.


 


X.


 


AGENTS


 


A.                                   Appointment
and Authorization of Administrative Agent and Collateral Agent.


 


1.             Each
of the Lenders and the L/C Issuer hereby irrevocably appoints JPMCB 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 Issuer, and
neither the Borrower nor any other Credit Party shall have rights as a third
party beneficiary of any of such provisions.


 


2.             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 


 


119

















 


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.


 


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


 


B.                                     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.


 


C.                                     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:


 


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


 


2.             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


 


3.             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 


 


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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)
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 the 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.


 


D.                                    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
the L/C Issuer, each of the Administrative Agent and the Collateral Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless such Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit.  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.


 


E.                                      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 


 


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


 


F.                                      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, the 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 Issuer, 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 Issuer
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 the 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.


 


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Any
resignation by JPMCB 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 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.


 


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


 


Each
Lender and the 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 the 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.


 


H.                                    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 the L/C Issuer
hereunder.


 


I.                                         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:


 


1.             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 


 


123

















 


unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer, the Collateral Agent and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuer, the Collateral Agent and the
Administrative Agent and their respective agents and counsel and all other amounts
due the Lenders, the L/C Issuer, the Collateral Agent and the Administrative
Agent under Sections 2.09 and 11.04) allowed in such judicial
proceeding; and


 


2.             to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and the L/C Issuer to make such payments to
the Administrative Agent 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 the 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 the 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.


 


J.                                        Collateral
and Guaranty Matters.


 


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


 


1.             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;


 


2.             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 and (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 L/C Issuer or (y) the receipt
by the L/C Issuer of a backstop letter of credit on terms satisfactory to the
Administrative Agent and L/C Issuer), (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


 


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Credit Party), or (iii) subject
to Section 11.01, if approved, authorized or ratified in writing by
the Required Lenders; and


 


3.             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).


 


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 in connection with a transaction
permitted hereunder.


 


K.                                    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.


 


L.                                      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.


 


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XI.


 


MISCELLANEOUS


 


A.                                   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 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:


 


1.             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,


 


(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 (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, if any Foreign Subsidiary shall have been added as an additional
borrower under the Approved Currency Revolving Facility pursuant to Section 1.08,
release the Borrower from its guarantee of the obligations in respect of any
borrowings by such Foreign Subsidiary;


 


2.             without
the consent of each Lender adversely affected thereby, no such amendment,
waiver or consent shall:


 


126

















 


(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,


 


(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;


 


3.             unless
signed by the Required Term A Lenders, no such amendment, waiver or consent
shall:


 


(i)      amend
or waive the manner of application of any mandatory prepayment to the Term A
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 A Lenders”;


 


4.             unless
signed by the Required Term B Lenders, no such amendment, waiver or consent
shall:


 


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


 


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


 


5.             any
such amendment, waiver or consent to any provision that relates to the Term A
Loan Commitments and/or Term A Loans, the Term B Loan Commitments and/or Term B
Loans or the Revolving Commitments and/or Revolving Loans but does not apply
(or applies differently) to the other Commitments and/or Loans, shall also require


 


127

















 


the consent of the
Required Term A Lenders, Required Term B Lenders or Required Revolving Lenders,
respectively;


 


6.             any
such amendment, waiver or consent to any provision that relates to the Dollar
Revolving Commitments or Dollar Revolving Loans, on the one hand, but not the
Approved Currency Revolving Commitments or Approved Currency Revolving Loans,
on the other hand, or relates to the Approved Currency Revolving Commitments or
Approved Currency Revolving Loans, on the one hand, but not the Dollar
Revolving Commitments or Dollar Revolving Loans, on the other hand, or applies
differently to the Dollar Revolving Commitments or Dollar Revolving Loans, on
the one hand, and to the Approved Currency Revolving Commitments or Approved
Currency Revolving Loans, on the other hand, shall also require the consent of
the Required Dollar Revolving Lenders or the Required Approved Currency
Revolving Lenders, respectively;


 


7.             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(g),
(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;


 


8.             unless
also signed by the Required Dollar Revolving Lenders, no such amendment, waiver
or consent shall amend or waive the provisions of this Section 11.01(h) or
the definition of “Required Dollar Revolving Lenders”;


 


9.             unless
also signed by the Required Approved Currency Revolving Lenders, no such
amendment, waiver or consent shall amend or waive the provisions of this Section 11.01(i) or
the definition of “Required Approved Currency Revolving Lenders”;


 


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


 


11.           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;


 


12.           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


 


13.           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 


 


128

















 


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(f) and (g) and in Section 1.08 or for the
purpose of ensuring the enforceability of any local law pledge agreement
entered into with respect to the Capital Stock of any Foreign Subsidiary.


 


B.                                     Notices;
Effectiveness; Electronic Communication.


 


1.             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, the 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


 


(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).


 


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