Exhibit 10.13


 


CREDIT AGREEMENT


 


dated as of July 25, 2008


 


among


 


INTERVAL ACQUISITION CORP.,


as Borrower,


 


CERTAIN SUBSIDIARIES OF THE BORROWER,


as Guarantors,


 


THE LENDERS PARTY HERETO,


 


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Administrative Agent and Collateral Agent,


 


BARCLAYS CAPITAL,


as Syndication Agent,


 


BANK OF AMERICA, N.A.,


JPMORGAN CHASE BANK, N.A.,


and


MERRILL LYNCH CAPITAL CORPORATION,  


as Co-Documentation Agents,


 


WACHOVIA CAPITAL MARKETS,  LLC,


and


BARCLAYS CAPITAL,


as Joint Lead Arrangers


 


and


 


WACHOVIA CAPITAL MARKETS, LLC,


BARCLAYS CAPITAL,


BANC OF AMERICA SECURITIES LLC,


J.P. MORGAN SECURITIES INC.,


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED


and


MORGAN STANLEY & CO. INCORPORATED


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

  	
  42

  
	
  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

  	
  50

  
	
  2.04

  	
  Additional Provisions with Respect to Swingline
  Loans

  	
  58

  
	
  2.05

  	
  Repayment of Loans

  	
  61

  
	
  2.06

  	
  Prepayments

  	
  62

  
	
  2.07

  	
  Termination or Reduction of Commitments

  	
  66

  
	
  2.08

  	
  Interest

  	
  66

  
	
  2.09

  	
  Fees

  	
  67

  
	
  2.10

  	
  Computation of Interest and Fees

  	
  68

  
	
  2.11

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  69

  
	
  2.12

  	
  Sharing of Payments by Lenders

  	
  71

  
	
  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

  	
  77

  
	
  3.05

  	
  Compensation for Losses

  	
  78

  



 


i

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  79

  
	
  3.07

  	
  Survival Losses

  	
  79

  
	
  3.08

  	
  Additional Reserve Costs

  	
  80

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTY

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  The Guaranty

  	
  80

  
	
  4.02

  	
  Obligations Unconditional

  	
  81

  
	
  4.03

  	
  Reinstatement

  	
  82

  
	
  4.04

  	
  Certain Waivers

  	
  82

  
	
  4.05

  	
  Remedies

  	
  83

  
	
  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

  	
  84

  
	
  5.02

  	
  Conditions to the Funding Date

  	
  85

  
	
  5.03

  	
  Conditions to All Credit Extensions

  	
  89

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  89

  
	
  6.02

  	
  Authorization; No Contravention

  	
  90

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  90

  
	
  6.04

  	
  Binding Effect

  	
  90

  
	
  6.05

  	
  Financial Statements

  	
  90

  
	
  6.06

  	
  No Material Adverse Effect

  	
  91

  
	
  6.07

  	
  Litigation

  	
  91

  
	
  6.08

  	
  No Default

  	
  91

  
	
  6.09

  	
  Ownership of Property; Liens

  	
  91

  
	
  6.10

  	
  Taxes

  	
  91

  
	
  6.11

  	
  ERISA Compliance

  	
  92

  
	
  6.12

  	
  Subsidiaries

  	
  92

  
	
  6.13

  	
  Margin Regulations; Investment Company Act

  	
  93

  
	
  6.14

  	
  Disclosure

  	
  93

  
	
  6.15

  	
  Compliance with Laws

  	
  93

  
	
  6.16

  	
  Solvency

  	
  94

  
	
  6.17

  	
  Intellectual Property; Licenses, Etc.

  	
  94

  



 


ii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.18

  	
  Security Agreement

  	
  94

  
	
  6.19

  	
  Pledge Agreement

  	
  94

  
	
  6.20

  	
  Mortgages

  	
  95

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AFFIRMATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Financial Statements

  	
  95

  
	
  7.02

  	
  Certificates; Other Information

  	
  97

  
	
  7.03

  	
  Notification

  	
  99

  
	
  7.04

  	
  Preservation of Existence

  	
  99

  
	
  7.05

  	
  Payment of Taxes and Other Obligations

  	
  99

  
	
  7.06

  	
  Compliance with Law

  	
  100

  
	
  7.07

  	
  Maintenance of Property

  	
  100

  
	
  7.08

  	
  Insurance

  	
  100

  
	
  7.09

  	
  Books and Records

  	
  101

  
	
  7.10

  	
  Inspection Rights

  	
  101

  
	
  7.11

  	
  Use of Proceeds

  	
  101

  
	
  7.12

  	
  Joinder of Subsidiaries as Guarantors

  	
  101

  
	
  7.13

  	
  Pledge of Capital Stock

  	
  102

  
	
  7.14

  	
  Pledge of Other Property

  	
  102

  
	
  7.15

  	
  Further Assurances Regarding Collateral

  	
  103

  
	
  7.16

  	
  Holdings Guarantee

  	
  104

  
	
  7.17

  	
  Post-Closing Matters

  	
  104

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEGATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Liens

  	
  105

  
	
  8.02

  	
  Investments

  	
  108

  
	
  8.03

  	
  Indebtedness

  	
  110

  
	
  8.04

  	
  Mergers and Dissolutions

  	
  113

  
	
  8.05

  	
  Dispositions

  	
  114

  
	
  8.06

  	
  Restricted Payments

  	
  114

  
	
  8.07

  	
  Change in Nature of Business

  	
  116

  
	
  8.08

  	
  Change in Accounting Practices or Fiscal Year

  	
  116

  
	
  8.09

  	
  Transactions with Affiliates

  	
  116

  
	
  8.10

  	
  Financial Covenants

  	
  116

  
	
  8.11

  	
  Limitation on Subsidiary Distributions

  	
  117

  
	
  8.12

  	
  Spin-Off

  	
  118

  
	
  8.13

  	
  Transfers/Investments with respect to Certain
  Subsidiaries

  	
  118

  



 


iii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EVENTS OF
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Events of Default

  	
  119

  
	
  9.02

  	
  Remedies upon Event of Default

  	
  121

  
	
  9.03

  	
  Application of Funds

  	
  122

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AGENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Appointment and Authorization of Administrative
  Agent and Collateral Agent

  	
  123

  
	
  10.02

  	
  Rights as a Lender

  	
  124

  
	
  10.03

  	
  Exculpatory Provisions

  	
  124

  
	
  10.04

  	
  Reliance by Administrative Agent and Collateral
  Agent

  	
  125

  
	
  10.05

  	
  Delegation of Duties

  	
  125

  
	
  10.06

  	
  Resignation of the Administrative Agent or the
  Collateral Agent

  	
  126

  
	
  10.07

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

  	
  127

  
	
  10.08

  	
  No Other Duties

  	
  127

  
	
  10.09

  	
  Administrative Agent or Collateral Agent
  May File Proofs of Claim

  	
  127

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  128

  
	
  10.11

  	
  Withholding Tax

  	
  129

  
	
  10.12

  	
  Treasury Management Agreements and Swap Contracts

  	
  129

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE XI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  11.01

  	
  Amendments, Etc.

  	
  130

  
	
  11.02

  	
  Notices; Effectiveness; Electronic Communication

  	
  133

  
	
  11.03

  	
  No Waiver; Cumulative Remedies; Enforcement

  	
  135

  
	
  11.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  135

  
	
  11.05

  	
  Payments Set Aside

  	
  137

  
	
  11.06

  	
  Successors and Assigns

  	
  138

  
	
  11.07

  	
  Treatment of Certain Information; Confidentiality

  	
  143

  
	
  11.08

  	
  Right of Setoff

  	
  144

  
	
  11.09

  	
  Interest Rate Limitation

  	
  144

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  145

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  145

  
	
  11.12

  	
  Severability

  	
  145

  
	
  11.13

  	
  Replacement of Lenders

  	
  146

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  147

  
	
  11.15

  	
  Waiver of Jury Trial

  	
  148

  
				



 


iv

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  11.16

  	
  USA PATRIOT Act Notice

  	
  148

  
	
  11.17

  	
  Designation as Senior Debt.

  	
  148

  
	
  11.18

  	
  No Advisory or Fiduciary Responsibility

  	
  149

  



 


v

















 


	
   

  	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.01A

  	
  Existing
  Letters of Credit

  	
   

  
	
  Schedule 1.01B

  	
  Funding
  Date Subsidiary Guarantors

  	
   

  
	
  Schedule 2.01

  	
  Lenders
  and Commitments

  	
   

  
	
  Schedule 3.08

  	
  Mandatory
  Cost Rate

  	
   

  
	
  Schedule 5.02

  	
  Mortgaged
  Properties

  	
   

  
	
  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 1.01C

  	
  Form of
  Mortgage

  	
   

  
	
  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 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 INTERVAL ACQUISITION CORP., a Delaware corporation (the “Borrower”),
the Subsidiary Guarantors identified herein, the Lenders party hereto, and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent.


 


W I T N E S S E T H


 


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


 


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


 


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


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING
TERMS


 


1.01        Defined
Terms.


 


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


 


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


 


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


 


“Administrative
Agent” means Wachovia 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 and Term Loan
Commitment and the denominator of which is the Aggregate Commitments.


 


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


 


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


 


“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.


 


2

















 


“Applicable Percentage” means the following
percentages per annum:


 


APPLICABLE PERCENTAGES FOR REVOLVING LOANS,

SWINGLINE LOANS, LETTER OF CREDIT FEES AND TERM LOANS


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Total

  Leverage

  Ratio

  	
   

  	
  Eurodollar Rate

  Loans (other

  than for

  Revolving

  Loans)

  	
   

  	
  Base Rate

  Loans (other

  than for

  Revolving

  Loans)

  	
   

  	
  Eurodollar

  Rate Loans

  (for Revolving

  Loans) and

  Letter of

  Credit Fees

  	
   

  	
  Base Rate

  Loans

  (for

  Revolving

  Loans)

  	
   

  
	
  I

  	
   

  	
  < 2.00:1.00

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  
	
  II

  	
   

  	
  > 2.00
  but < 2.75:1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  
	
  III

  	
   

  	
  > 2.75
  but < 3.50:1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  
	
  IV

  	
   

  	
  > 3.50:1.00

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  



 


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


 


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



 


3

















 


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.


 


“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.


 


4

















 


“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).


 


“Barclays
Bank” means Barclays Bank PLC, together with its successors.


 


“Barclays
Capital” means Barclays Capital, the investment banking division of
Barclays Bank PLC, together with its successors.


 


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


 


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


 


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


 


5

















 


“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 U.S. Dollars or foreign currencies,
as applicable, in the London Interbank Market, (b) if such day relates to
any dealings in Euros to be carried out pursuant to this Credit Agreement, the
term “Business Day” means any such day which is a TARGET Day and (c) if
such day relates to any dealings in any currency other than Euros or Dollars to
be carried out pursuant to this Credit Agreement, the term “Business Day” shall
also exclude any day on which banks are not open for foreign exchange dealings
between banks in the home country of such foreign currency.


 


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


 


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


 


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


 


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


 


6

















 


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


 


(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; or


 


(d)           upon and following
the Spin-Off Date, Holdings shall cease to control and directly own 100% of
each class of outstanding Capital Stock of the Borrower.


 


“Closing
Date” means the date hereof.


 


7

















 


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


 


“Collateral
Agent” means Wachovia 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
Fee” has the meaning provided in Section 2.09(a).


 


“Commitment
Letter” means the Commitment Letter dated as of June 19, 2008 among
the Borrower, Wachovia, 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 and the Term 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
and the Term 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).


 


“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 


 


8

















 


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 $3.0
million in such period, (l) any non-cash loss related to discontinued
operations and (m) any other non-cash charges (other than write-offs or
write-downs of inventory or accounts receivable); provided that, in the
case of any non-cash charge referred to in this definition of Consolidated
EBITDA that relates to accruals or reserves for a future cash disbursement,
such future cash disbursement shall be deducted from Consolidated EBITDA in the
period when such cash is so disbursed; minus (B) in each case
solely to the extent increasing Consolidated Net Income in such period: (a) any
extraordinary gain in accordance with GAAP, (b) any nonrecurring item of
gain or income (including write-ups of assets), other than any write-up of
inventory or accounts receivable, (c) any gains from sales of Property,
other than from sales in the ordinary course of business, (d) any non-cash
gain related to discontinued operations; and (e) the aggregate amount of
all other non-cash items increasing Consolidated Net Income during such period;
provided that in the case of any non-cash item referred to in clause (B) of
this definition of Consolidated EBITDA that relates to a future cash payment to
Borrower or a Subsidiary, such future cash payment shall be added to
Consolidated EBITDA in the period when such payment is so received by Borrower
or such Subsidiary.


 


Subject
to the following sentence, Consolidated EBITDA for the fiscal quarters ended September 30,
2007, December 31, 2007 and March 31, 2008 shall be deemed to be
$34.552 million, $31.784 million and $47.486 million, respectively. Without
duplication of any pro forma adjustments reflected in the amounts set forth in
the previous 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 Capital Expenditures
made in cash during such period that are not financed with the proceeds of
Indebtedness, an issuance of Capital Stock or from a reinvestment of Net Cash
Proceeds referred to in Section 2.06(b)(ii), (iii) optional prepayments
of Funded Debt during such period (other than prepayments of Revolving Loans owing
under this Credit Agreement (unless, in the case of a prepayment of Revolving
Loans, there is a simultaneous reduction in the Aggregate Revolving Commitments
in the amount of such prepayment pursuant to Section 2.07) and
other such optional prepayments made with the proceeds of other Indebtedness), (iv) to
the extent not financed with the incurrence or assumption of Indebtedness or
proceeds from an issuance of Capital Stock, Subject Dispositions, Specified
Dispositions or Involuntary Dispositions, cash sums expended for Investments
pursuant to Section 8.02(c), (i), (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 and (v) without
duplication of amounts deducted from Consolidated Excess Cash 


 


9

















 


Flow in prior periods, the aggregate consideration
required to be paid in cash by the Borrower or any Subsidiary pursuant to
binding contracts (the “Contract Consideration”) entered into prior to
or during such period relating to Consolidated Capital Expenditures to be
consummated or made during the three months following the end of such period, provided
that to the extent the aggregate amount of internally generated cash actually
utilized to finance such Consolidated Capital Expenditures during such three
months is less than the Contract Consideration, the amount of such shortfall
shall be added to Consolidated Excess Cash Flow for the period following such
period.


 


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


 


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


 


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


 


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


 


“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 Subsidiary
Guarantor) that is not distributed to the Borrower or a Subsidiary 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, (iii) the
cumulative effect of any change in accounting principles shall be excluded and (iv) gains
and losses to the extent due to fluctuations in currency values 


 


10

















 


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 or Holdings, as the case
may be, 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 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, 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) and, upon and following the Spin-Off
Date, Holdings.


 


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


 


11














 


“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
Holdings (but not including any issuance or purchase referred to in Section 8.02(c) or
(r)) after the Funding Date and at or prior to such time, to the extent
such Net Cash Proceeds have actually been contributed to the Borrower in
exchange for common equity of the Borrower 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) without duplication of any amounts referred to in clause (b),
the aggregate amount of cash contributions to the common equity capital of the
Borrower received by the Borrower from Holdings at or prior to such time, plus (e) to the extent not otherwise reflected in
Consolidated Excess Cash Flow or clause (d) above, 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 Subsidiary Guarantor at or prior to such time minus (f) the aggregate amount
of Investments and Restricted Payments made since the Funding Date pursuant to Sections
8.02(k) (excluding Investments subsequently deemed to have been made
pursuant to Section 8.02(e)) and 8.06(f), respectively, through
utilization of the Cumulative Credit (excluding such proposed use of the Cumulative
Credit, but including any other simultaneous proposed use of the Cumulative
Credit) minus (g) 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.


 


12

















 


“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 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.


 


13

















 


“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 (not to exceed $50.0
million in the aggregate) reflected in the bank statements of the Borrower and
the Borrower’s Domestic Subsidiaries immediately after giving effect to the
Transactions (but not including any proceeds of Revolving Loans or Swingline
Loans), to the extent such amount is unrestricted as of the Spin-Off Date after
giving effect to the Transactions (including without limitation all payments
pursuant to Section 4.04 of the Separation Agreement).


 


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


 


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


 


14

















 


 “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 3.50:1.00, fifty percent
(50%), (ii) less than 3.50:1.00 but greater than or equal to 2.85:1.00,
twenty-five percent (25%) and (iii) less than 2.85:1.00, zero percent
(0%).


 


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


 


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


 


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


 


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


 


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


 


“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; 


 


15

















 


(d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
that would reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.


 


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


 


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


 


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


 


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


 


“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 


 


16

















 


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


 


17

















 


“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 the L/C Issuer from and
after the date hereof until the Funding Date.


 


 “Facility Fees” 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 Wachovia on such day on such transactions as determined by
the Administrative Agent.


 


“Fee
Letter” means the letter agreement, dated June 19, 2008, among the
Borrower, Wachovia, 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 Loan Termination
Date and any final maturity date applicable to any outstanding Incremental Term
Loans at such time.


 


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


 


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


 


“Foreign
Cash” means, at any time, any portion of the amount of the cash and Cash
Equivalents (not to exceed $70.0 million in the aggregate) 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 (other than the proceeds of Revolving Loans
or Swingline Loans), after giving effect to any payments required to be made
pursuant to Section 4.04 of the Separation Agreement,  and, to the extent such cash is repatriated
to the Borrower or a Domestic Subsidiary, net of applicable taxes in connection
with such repatriation.


 


 “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.


 


18

















 


“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
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


 


19

















 


Obligations in the case of Support Obligations under clause
(f).  Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be deemed
to mean the maximum face amount of such Letter of Credit after giving effect to
all increases thereof contemplated by such Letter of Credit or the L/C
Application therefor, whether or not such maximum face amount is in effect at
such time.


 


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


 


“GAAP” means generally accepted accounting
principles in effect in the United States as set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board from time to time applied on a consistent basis,
subject to the provisions of Section 1.03.


 


“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 the Subsidiary Guarantors and, upon and following the Spin-Off Date,
Holdings, collectively.


 


“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.


 


“Holdings”
means Interval Leisure Group, Inc., a Delaware corporation.


 


“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 dividends, comprised of a combination of cash
and Senior Notes, to be paid by the Borrower, directly or indirectly, to IAC in
an approximate aggregate amount of $400.0 million.


 


“Immaterial
Subsidiary” means, at any date of determination, any Subsidiary of the Borrower
designated as such in writing by the Borrower that had assets representing 1.0%
or less of 


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


(a)           all Funded Debt;


 


(b)           net obligations
under Swap Contracts;


 


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


 


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


 


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


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


21














 


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


 


“Information”
has the meaning provided in Section 11.07.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person of or in the Capital Stock, Indebtedness or other equity or debt
interest of another 


 


22

















 


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.


 


“Laws”
means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes, executive orders
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, including, without
limitation, Environmental Laws.


 


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


 


“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 or refinanced as a Borrowing of
Dollar Revolving Loans.


 


23

















 


“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 Wachovia 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 WCM and Barclays Capital.


 


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


 


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


 


“Letter
of Credit” means each standby 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 


 


24

















 


other title retention agreement, any easement, right
of way or other encumbrance on title to real property and any financing lease
having substantially the same economic effect as any of the foregoing).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Mortgaged
Property” means (a) each real property identified as a Mortgaged
Property on Schedule 5.02 and (b) each real property, if any,
which shall be subject to a Mortgage delivered after the Closing Date pursuant
to Section 7.16.


 


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


 


“Multiemployer
Plan” means any employee pension benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated 


 


25

















 


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).


 


“Non-Reinstatement
Deadline” has the meaning provided in Section 2.03(b)(iv).


 


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


 


“Obligations”
means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party (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 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 


 


26

















 


or Affiliate of a Lender or any Person that was a
Lender or Affiliate of a Lender at the time it entered into such Swap Contract,
to the extent such Swap Contract is otherwise permitted hereunder (each, in
such capacity, a “Hedge Bank”) and (c) all obligations under any
Treasury Management Agreement between any Credit Party and any Lender or
Affiliate of a Lender or any Person that was a Lender or Affiliate of a Lender
at the time it entered into such Treasury Management Agreement (each, in such
capacity, a “Treasury Management Bank”).


 


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


 


“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 Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any prepayments or repayments of the Term
Loans on such date.


 


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


 


27

















 


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


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


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


 


“Permitted
Acquisition” means any Acquisition; provided that (i) no
Default or Event of Default shall have occurred and be continuing or exist immediately
after giving effect to such Acquisition, (ii) after giving effect on a Pro
Forma Basis to the Investment to be made, as of the last day of the most
recently ended fiscal quarter at the end of which financial statements were
required to have been delivered pursuant to Section 7.01(a) or
(b) (or, prior to such first required delivery date for such
financial statements, as of the last day of the most recent period referred to
in the first sentence of Section 6.05), the Borrower would be in
compliance with Section 8.10 (and if such Acquisition involves
consideration greater than $10.0 million, then the Borrower shall deliver a
certificate of a Responsible Officer as to the satisfaction of the requirements
in this clause (ii)) and (iii) if such Acquisition involves
consideration in excess of $5.0 million (or if the total of all consideration
for all Acquisitions since the Closing Date exceeds $15.0 million), all assets
acquired in such Acquisition shall be held by the Borrower or a Subsidiary
Guarantor and all Persons acquired in such Acquisition shall become Subsidiary
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 Subsidiary
Guarantors or Acquisitions of Subsidiaries that are not Subsidiary 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 $5.0 million and $15.0 million limitations set forth in this clause
(iii).


 


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


 


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


 


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


 


28

















 


“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 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, 


 


29

















 


Subject Disposition or Specified Disposition and prior
to the date of determination that are supportable and quantifiable by the
underlying accounting records of such business or (iii) relate to (A) the
business that is the subject of or (B) the business of the Borrower and
its Subsidiaries arising from any such Acquisition, Subject Disposition or
Specified Disposition and that the Borrower reasonably determines are probable
based upon specifically identifiable actions to be taken within 12 months of
the date of the Acquisition, Subject Disposition or Specified Disposition and,
in each case, are described, as provided below, in a certificate from a
Responsible Officer of the Borrower, as if all such reductions in costs had
been effected as of the beginning of such period.  Pro Forma Cost Savings described above shall
be accompanied by a certificate from a Responsible Officer of the Borrower
delivered to the Administrative Agent that outlines the specific actions taken
or to be taken, the net cost savings achieved or to be achieved from each such
action and that, in the case of clause (iii) above, such savings
have been determined to be probable; provided that such net costs and
related adjustments referred to in clauses (ii) and (iii) shall
not exceed $10.0 million in any period for which Consolidated EBITDA is calculated.


 


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


 


“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 other than Disqualified Capital
Stock.


 


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


 


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


 


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


 


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


 


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


 


30

















 


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


 


“Required
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 case, the aggregate principal amount of each
Lender’s risk participation and funded participation in L/C Obligations and
Swingline Loans); provided that the Revolving Commitment of, and the
portion of Revolving Obligations held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Revolving Lenders.


 


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


 


31














 


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


 


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


 


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


 


32

















 


“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.


 


“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.


 


33

















 


“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.


 


“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 $300.0 million in aggregate principal amount of 9.5%
Senior Notes due 2016 to be issued by the Borrower on the terms previously
disclosed to the Administrative Agent, and any exchange notes issued in
exchange therefor pursuant to the registration rights agreement executed in
connection with the issuance thereof.


 


“Separation
Agreement” means the Separation Agreement to be dated on or prior to the
Spin-Off Date, among Holdings, HSN, Inc., Tree.com, Ticketmaster 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 Act of 1933, 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 


 


34

















 


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
(other than Holdings) to a member of the Consolidated Group that is not a
Credit Party.


 


“Spin-Off”
means the spin-off of Holdings from IAC pursuant to the Separation Agreement,
such that from and after such spin-off, Holdings 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 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 City time, in the case of Canadian
Dollars and (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 


 


35

















 


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 (other than Holdings) to any other Credit Party (other than
Holdings), (ii) a Subsidiary that is not a Credit Party to a Credit Party
(other than Holdings) 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.


 


“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.


 


“Subsidiary
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 Subsidiary Guarantor.


 


“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 


 


36

















 


advance or supply funds for the purchase or payment
of) such Indebtedness, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Indebtedness
of the payment or performance of such Indebtedness, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to
obtain any such Lien).  The amount of any
Support Obligations shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Support Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith.


 


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


 


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


 


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


 


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


 


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


 


37

















 


“Swingline
Lender” means Wachovia 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.


 


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


 


“Tax
Distributions” means, with respect to any fiscal year or portion thereof
that the Borrower is treated as a partnership or “disregarded entity” for
federal income tax purposes or is part of a consolidated, combined or similar
group for Tax purposes of which Holdings or another direct or indirect parent
of the Borrower is the common parent (a “Tax Group”), cash distributions paid
by the Borrower to Holdings (or to another direct or indirect parent of the
Borrower that is the common parent) in respect of (a) where the Borrower
is treated as a partnership for federal income tax purposes, the income Tax
liabilities of Holdings or the Tax Group (as applicable) attributable to the taxable
income of the Borrower or (b) where the Borrower is part of a Tax Group
(or is treated as a “disregarded entity” owned by a member of a Tax Group), the
income Tax liabilities of the Tax Group attributable to the taxable income of
the Borrower and its Subsidiaries included in the Tax Group, as the case may be
(in each case, including, any estimates thereof and any Tax deficiencies or
other subsequent adjustments to such Tax liabilities); provided that
such distributions in respect of any fiscal year of the Borrower or portion
thereof (i) shall be permitted to be of an amount equal to, but shall not
materially exceed, the income Taxes that the Borrower and/or its Subsidiaries
(as applicable) would have paid on a stand alone basis (or as a stand alone tax
group), assuming for this purpose that the Borrower is treated as a domestic
corporation for federal income tax purposes, and (ii) shall be reduced by
any such income Taxes paid or payable directly by the Borrower and/or its
Subsidiaries (including, any estimates thereof and any tax deficiencies or
other subsequent adjustments to such liabilities).


 


“Tax
Group” has the meaning assigned to such term in the definition of Tax
Distributions.


 


“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.


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


39














 


“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).


 


 “Wachovia” has the meaning provided in
the Recitals hereto.


 


“WCM”
means Wachovia Capital Markets LLC.


 


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


 


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


 


1.02        Interpretative
Provisions.


 


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


 


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


 


40

















 


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.


 


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


 


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


 


1.03        Accounting
Terms and Provisions.


 


(a)           All
accounting terms not specifically or completely defined herein shall be construed
in conformity with, and all financial data (including financial ratios and
other financial calculations) required to be submitted pursuant to this Credit
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis in a manner consistent with that used in preparing the audited financial
statements referenced in Section 6.05, except as otherwise
specifically prescribed herein.


 


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


 


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


 


41

















 


between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.


 


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


 


1.04                        Rounding.


 


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


 


1.05                        Times
of Day.


 


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


 


1.06                        Exchange
Rates; Currency Equivalents.


 


(a)           The
Administrative Agent or the 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 statements delivered hereunder or calculating financial
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.


 


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


 


1.07                        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) 


 


42

















 


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.


 


1.08                        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).


 


1.09                        Change
of Currency.


 


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


 


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


 


(c)           Each
provision of this Credit Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate 


 


43

















 


to reflect a change in currency of any other country and any relevant
market conventions or practices relating to the change in currency.


 


1.10                        Letter
of Credit Amounts.


 


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


 


ARTICLE II


 


COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                        Commitments.


 


Subject to the terms and conditions set forth herein:


 


(a)           Revolving
Loans.


 


(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 THIRTY FIVE MILLION DOLLARS ($35,000,000) (as such
amount may be increased pursuant to Section 2.01(f) 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
in accordance with the provisions hereof. 
Notwithstanding anything contained herein, no Dollar Revolving Loans may
be used to fund the IAC Dividend, the Spin-Off, any transaction related to the
Spin-Off or undertaken as contemplated by Section 8.12.


 


(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 FIFTEEN MILLION DOLLARS ($15,000,000) (as such
amount may be increased pursuant to Section 2.01(f) or decreased in
accordance with the Sections 2.07 or 9.02(a), the “Aggregate 


 


44

















 


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 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 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 may be used to fund the IAC Dividend, the Spin-Off, any
transaction related to the Spin-Off or undertaken as contemplated by Section 8.12.


 


(b)           Letters
of Credit.  On and after the Funding Date, (x) the
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, but in
such case the Borrower will remain obligated to reimburse the L/C Issuer for
any and all drawings under such Letter of Credit, and the Borrower acknowledges
that the issuance of Letters of Credit for the account of members of the
Consolidated Group inures to the benefit of the Borrower, and the Borrower
acknowledges that the Borrower’s business derives substantial benefits from the
business of such members of the Consolidated Group) on any Business Day, (B) to
amend or extend Letters of Credit previously issued hereunder, and (C) to
honor drawings under Letters of Credit; and (y) 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
FIFTEEN MILLION DOLLARS ($15,000,000) (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 and (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. 
Subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. 
Notwithstanding anything contained herein, no Letters of Credit may be
used to support the IAC Dividend, the Spin-Off, any transaction contemplated by
the Spin-Off or contemplated by Section 8.12.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Funding Date
shall be subject to and governed by the terms and conditions hereof.


 


(c)           Swingline
Loans.  During the Commitment Period, the Swingline
Lender agrees, in reliance upon the commitments of the other Dollar Revolving
Lenders set forth herein, to make revolving credit loans (the “Swingline
Loans”) to the Borrower on any Business Day; provided that (i) the
Outstanding Amount of Swingline Loans shall not exceed TEN MILLION DOLLARS
($10,000,000) (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, 


 


45

















 


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.


 


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


 


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


 


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


 


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


 


(iii)          the conditions to the making of a
Credit Extension under Section 5.02 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 


 


46

















 


therewith and (C) none of the Lenders shall have
any obligation to provide commitments or loans for any Incremental Loan
Facility.


 


(f)            Establishment of Incremental Revolving Commitments. 
Subject to Section 2.01(e), the Borrower may establish
Incremental Revolving Commitments by increasing the Aggregate 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(f) will
provide a Revolving Lender Joinder Agreement;


 


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


 


(iv)          if any Revolving Loans are outstanding
at the time of any such increase under the applicable Revolving Facility,
either (x) the Borrower will prepay such Revolving Loans on the date of
effectiveness of the Incremental Revolving Commitments (including payment of
any break-funding amounts owing under Section 3.05) or (y) each
Lender with an Incremental Revolving Commitment shall purchase at par interests
in each Borrowing of 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.


 


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


 


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


 


47

















 


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


 


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


 


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


 


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


 


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


 


Any Incremental Term Loan
established hereunder shall be on terms to be determined by the Borrower and
the Lenders thereunder (and the Borrower and the Administrative Agent may,
without the consent of any other Lender, enter into an amendment to this Credit
Agreement to appropriately include the Incremental Term Loans hereunder including,
without limitation, to provide that such Incremental Term Loans shall share in
mandatory prepayments on the same basis as the Term Loans); provided
that, to the extent that such terms and documentation are not consistent with
the Term Loans (except to the extent permitted by clause (iv), (v) or
(vi) above), they shall be reasonably satisfactory to the
Administrative Agent; provided  further that if any covenant, term
(except to the extent permitted by clause (iv), (v) or (vi) above),
event of default or remedy in any Incremental Term Loans is more favorable to
the lenders thereunder than the corresponding covenant, term, event of default
or remedy in the existing Term Loans, or such Incremental Term Loans contain
any covenant, term (except to the extent permitted by 


 


48

















 


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 Commitments, as applicable) hereunder
and/or to incorporate any such covenant, event of default and/or remedy that is
not in the existing Credit Documents.


 


2.02                        Borrowings,
Conversions and Continuations.


 


(a)           Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 12:00 noon (New York time)
(or, with respect to amounts denominated in Alternative Currency, 11:00 a.m.
(London time)) (i) with respect to Eurodollar Rate Loans, three (3) Business
Days (or, in the case of Approved Currency Revolving Loans denominated in
Alternative Currency, four (4) Business Days) prior to the requested date
of, or (ii) with respect to Base Rate Loans, on the requested date of, any
Borrowing, conversion or continuation. 
Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Except as provided in Sections
2.03(c) and 2.04(b), each Borrowing, conversion or continuation
shall be in a principal amount of (i) with respect to Eurodollar Rate
Loans (A) denominated in Dollars, $1.0 million or a whole multiple of $1.0
million in excess thereof, (B) denominated in Euros, €1.0 million or a
whole multiple of €1.0 million in excess thereof, (C) denominated in
Sterling, £1.0 million or a whole multiple of £1.0 million in excess thereof
and (D) denominated in Canadian Dollars, C$1.0 million or a whole multiple
of C$1.0 million or (ii) with respect to Base Rate Loans, $500,000 or a
whole multiple of $100,000 in excess thereof. 
Each Loan Notice (whether telephonic or written) shall specify (i) whether
the Borrower’s request is with respect to Revolving Loans or the Term Loans, (ii) whether
such request is for a Borrowing, conversion, or continuation, (iii) the
requested date of such Borrowing, conversion or continuation (which shall be a
Business Day), (iv) the principal amount of Loans to be borrowed, converted
or continued, (v) the Type of Loans to be borrowed, converted or
continued, (vi) if such Loans are 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), 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.


 


(b)           Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely 


 


49

















 


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 1:00 p.m. (New York time) on the Business
Day specified in the applicable Loan Notice. 
In the case of a Borrowing denominated in an Alternative Currency, each
Lender shall make the amount of its Loan available to the Administrative Agent
in the applicable Alternative Currency in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. (London time) on
the Business Day specified in the applicable Loan Notice.  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 Wachovia with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to the Administrative Agent by the Borrower; provided, however,
that if on the date of such Borrowing there are L/C Borrowings outstanding,
then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, and second, to the Borrower
as provided above.


 


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


 


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


 


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


 


2.03                        Additional
Provisions with Respect to Letters of Credit.


 


(a)           Obligation
to Issue or Amend.


 


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


 


50














 


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


 


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


 


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


 


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


 


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


 


(C)           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 $50,000;


 


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


 


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


 


(F)           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.


 


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


 


51

















 


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


 


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


 


(iv)          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.


 


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


 


(i)            Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of the Borrower
delivered to the 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 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.


 


52

















 


(ii)           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 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.


 


(iii)          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 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.


 


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


 


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(c)           Drawings and Reimbursements; Funding of
Participations.


 


(i)            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 the date of any payment by the L/C Issuer under a Letter of Credit to
be reimbursed in Dollars, and (y) the Applicable Time on the date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the Borrower
shall reimburse 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 L/C
Issuer may, each in their discretion, with the consent of the Administrative
Agent and so long as such arrangements do not adversely affect the rights of
any Lender in any material respect, enter into Letter of Credit cash collateral
prefunding arrangements acceptable to them for the purpose of reimbursing
Letter of Credit draws.  If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
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.  In such event, the
Borrower shall be deemed to have requested a Borrowing in Dollars of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02(a) for
the principal amount of Base Rate Loans (but subject to the amount of the
unutilized portion of Dollar Revolving Committed Amount) and the conditions set
forth in Section 5.03).  Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)           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 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, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Dollar Revolving Lender
that so makes funds available shall be deemed to have made a Dollar Revolving
Loan that is a Base Rate Loan, to the Borrower.


 


54

















 


(iii)          With respect to any Unreimbursed
Amount that is not fully refinanced by a Borrowing of Base Rate Loans for any
reason, the Borrower shall be deemed to have incurred from the L/C Issuer an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate.  In such event, each 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.


 


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


 


(v)           Each Dollar Revolving Lender’s
obligation to make Dollar Revolving Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right 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) with respect to
funding participations in L/C Borrowings, non-compliance with the conditions
set forth in Section 5.03, or (D) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided
that 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.


 


(vi)          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 Loan included in the relevant Borrowing or L/C Advance
in respect of the relevant L/C Borrowing, as the case may be.  A certificate of 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

















 


(d)           Repayment of Participations.


 


(i)            At any time after the L/C Issuer has
made a payment under any Letter of Credit and has received from any 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.


 


(ii)           If any payment received by the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 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.


 


(e)           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 or any
Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this 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;


 


56

















 


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


 


(v)           any adverse change in the relevant
exchange rates or in the availability of the relevant Alternative Currency to
the Borrower or any Subsidiary or in the relevant currency markets generally;
or


 


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


 


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.


 


(f)            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 


 


57

















 


complying with the
terms and conditions of a Letter of Credit. 
In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason.


 


(g)           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.


 


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


 


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


 


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


 


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


 


2.04                        Additional
Provisions with Respect to Swingline Loans.


 


(a)           Borrowing Procedures. 
Each Swingline Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swingline Lender and the Administrative Agent, which may be 


 


58

















 


given by
telephone.  Each such notice must be
received by the Swingline Lender and the Administrative Agent not later than
1:00 p.m. (New York time) on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of
$100,000, and (ii) the requested borrowing date, which shall be a Business
Day.  Each such telephonic notice must be
confirmed promptly by delivery to the Swingline Lender and the Administrative
Agent of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Promptly after receipt by the Swingline Lender of any telephonic Loan
Notice, the Swingline Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Loan Notice and, if not, the Swingline Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof.  Unless the Swingline Lender has received
notice (by telephone or in writing) from the Administrative Agent prior to 2:00 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 3:00 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.


 


(b)           Refinancing.


 


(i)            The Swingline Lender at any time in
its sole and absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swingline Lender to so request on its
behalf), that each Revolving Lender make a Dollar Revolving Loan that is a Base
Rate Loan in an amount equal to such Dollar Revolving Lender’s Dollar Revolving
Commitment Percentage of Swingline Loans then outstanding.  Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate Commitments
or the conditions set forth in Section 5.03.  The Swingline Lender shall furnish the
Borrower with a copy of the applicable Loan Notice promptly after delivering
such notice to the Administrative Agent. 
Each Dollar Revolving Lender shall make an amount equal to its Dollar
Revolving Commitment Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swingline Lender at the Administrative Agent’s Office not later
than 1:00 p.m. (New York time) on the day specified in such Loan Notice,
whereupon, subject to Section 2.04(b)(ii), each Dollar Revolving Lender
that so makes funds available shall be deemed to have made a Dollar Revolving
Loan that is a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Swingline Lender.


 


(ii)           If for any reason any Swingline Loan
cannot be refinanced by such a Borrowing of Dollar Revolving Loans in
accordance with Section 2.04(b)(i), the request for Revolving Loans
submitted by the Swingline Lender as set forth herein shall be deemed 


 


59

















 


to be a request by the Swingline Lender that each of
the Dollar Revolving Lenders fund 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.


 


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


 


(iv)          Each Dollar Revolving Lender’s
obligation to make Dollar Revolving Loans or to purchase and fund risk
participations in Swingline Loans pursuant to this Section 2.04(b) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such 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.


 


(c)           Repayment of Participations.


 


(i)            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.


 


(ii)           If any payment received by the Swingline
Lender in respect of principal or interest on any Swingline Loan is required to
be returned by the Swingline Lender under 


 


60

















 


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.


 


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


 


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


 


2.05                        Repayment
of Loans.


 


(a)           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.


 


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


 


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


 


	
  Date

  	
   

  	
  Principal

  Amortization Payment

  (shown as a Percentage

  of

  Original Principal

  Amount)

  	
   

  	
  Date

  	
   

  	
  Principal

  Amortization

  Payment

  (shown as a

  Percentage of

  Original Principal

  Amount)

  	
   

  
	
  March 31,
  2009

  	
   

  	
  2.5%

  	
   

  	
  June 30,
  2011

  	
   

  	
  3.75%

  	
   

  
	
  June 30, 2009

  	
   

  	
  2.5%

  	
   

  	
  September 30, 2011

  	
   

  	
  3.75%

  	
   

  
	
  September 30, 2009

  	
   

  	
  2.5%

  	
   

  	
  December 31, 2011

  	
   

  	
  3.75%

  	
   

  
	
  December 31,
  2009

  	
   

  	
  2.5%

  	
   

  	
  March 31,
  2012

  	
   

  	
  3.75%

  	
   

  
	
  March 31,
  2010

  	
   

  	
  2.5%

  	
   

  	
  June 30,
  2012

  	
   

  	
  3.75%

  	
   

  
	
  June 30,
  2010

  	
   

  	
  2.5%

  	
   

  	
  September 30,
  2012

  	
   

  	
  3.75%

  	
   

  



 


61

















 


	
  Date

  	
   

  	
  Principal

  Amortization Payment

  (shown as a Percentage

  of

  Original Principal

  Amount)

  	
   

  	
  Date

  	
   

  	
  Principal

  Amortization

  Payment

  (shown as a

  Percentage of

  Original Principal

  Amount)

  	
   

  
	
  September 30,
  2010

  	
   

  	
  2.5%

  	
   

  	
  December 31,
  2012

  	
   

  	
  3.75%

  	
   

  
	
  December 31,
  2010

  	
   

  	
  2.5%

  	
   

  	
  March 31, 2013

  	
   

  	
  16.66%

  	
   

  
	
  March 31,
  2011

  	
   

  	
  3.75%

  	
   

  	
  June 30,
  2013

  	
   

  	
  16.66%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Term Loan

  Termination Date

  	
   

  	
  16.67%

  	
   

  



 


2.06                        Prepayments.


 


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


 


(i)            in the case of Loans other than
Swingline Loans, (A) notice thereof must be received by 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, at least four (4) Business Days) prior to the date
of prepayment, in the case of Eurodollar Rate Loans, and one (1) Business
Day prior to the date of prepayment, in the case of Base Rate Loans, (B) any
such prepayment shall be a minimum principal amount of (w) $1.0 million
and integral multiples of $1.0 million in excess thereof, in the case of
Eurodollar Rate Loans denominated in Dollars, (x) €1.0 million and integral
multiples of €1.0 million in excess thereof, in the case of Eurodollar Rate
Loans denominated in Euros, (y) £1.0 million and integral multiples of
£1.0 million in excess thereof, in the case of Eurodollar Rate Loans
denominated in Sterling and (z) C$1.0 million and integral multiples of
C$1.0 million in excess thereof, in the case of Eurodollar Rate Loans
denominated in Canadian Dollars and $500,000 and integral multiples of $100,000
in excess thereof, in the case of Base Rate Loans, or, in each case the entire
remaining principal amount thereof, if less; and


 


(ii)           in the case of Swingline Loans, (A) notice
thereof must be received by the Swingline Lender by 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 


 


62

















 


by accrued interest on the amount prepaid and breakage or other amounts
due, if any, under Section 3.05. 
Notwithstanding the foregoing, a notice of voluntary prepayment
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.


 


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


 


(i)            Revolving Commitments.


 


(A)          If at any time (1) the
Outstanding Amount of 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.


 


(B)           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
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 $1.0
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
$2.5 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 


 


63

















 


any Net Cash Proceeds required by the previous
sentence shall be made (x) in the case of a Major Disposition in respect
of which the notice referred to in Section 7.02(g) has not
been delivered on or before the fifteenth (15th) Business Day following the
receipt of the Net Cash Proceeds from such Major Disposition or to the extent
such notice does not indicate reinvestment is intended with the Net Cash
Proceeds of such Major Disposition, on or before the twenty-fifth (25th)
Business Day following receipt of such Net Cash Proceeds and (y) in any
other case, promptly after the Borrower determines that it will not reinvest
such Net Cash Proceeds in accordance with the terms and limitations of the previous
sentence, but in no event later than 366 days following the receipt of such Net
Cash Proceeds.  To the extent that the
Borrower has determined in good faith that repatriation to the United States of
any or all the Net Cash Proceeds of any Subject Disposition or Involuntary
Disposition by a Foreign Subsidiary would have a material adverse tax consequence
to the Borrower and its Subsidiaries, the Net Cash Proceeds so affected may be
retained by such Foreign Subsidiary, provided that on or before the date
on which any such Net Cash Proceeds would otherwise have been required to be
applied to reinvestments or prepayments pursuant to the foregoing provisions of
this Section 2.06(b)(ii), the Borrower applies an amount equal to
such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash
Proceeds had been received by the Borrower rather than such Foreign Subsidiary,
less the amount of additional taxes (to the extent such taxes are not already
deducted pursuant to the definition of Net Cash Proceeds) that would have been
payable or reserved against if such Net Cash Proceeds had been repatriated to
the United States.


 


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


 


(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.


 


64














 


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


 


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


 


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


 


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


 


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


 


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


 


65

















 


in subsection
(b)(ii) or subsection (b)(iii) occur prior to the Funding
Date and on or following the Closing Date, then the amount that would have
otherwise been required to be used to make prepayments of the Loans shall be
applied first, to reduce the Term Loan Commitments and second to reduce the
Revolving Commitments.


 


2.07                        Termination
or Reduction of Commitments.


 


Voluntary
Reductions.  The Commitments hereunder may be permanently
reduced in whole or in part by notice from the Borrower to the Administrative
Agent; provided that (i) any such notice thereof must be received
by 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 the
effective date of any termination thereof shall be paid on the effective date
of such termination.  A notice of
termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.


 


2.08                        Interest.


 


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


 


66

















 


hereunder shall be
due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief
Law.


 


2.09                        Fees.


 


(a)           Facility
Fee; Commitment Fee.  The Borrower shall pay to the Administrative
Agent for the account of each (x) 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, (y) 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 and (z) Term
Lender in accordance with its Term Loan Commitment Percentage thereof, a
commitment fee (the “Commitment Fee”) equal to 0.50% per annum of the
actual daily amount of the Aggregate Term Loan Committed Amount during the
period between the Closing Date and the Funding Date; provided that, if
the Borrower continues to have any outstanding Revolving Obligations after the
termination of the Commitment Period, then, with respect to each Revolving
Lender to whom such Revolving Obligations are then owed, such facility fee
shall continue to accrue in accordance with such Lender’s 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 Fees 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 Fee and Facility Fees shall
accrue at all times during the 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 Fees 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 Fees shall be
calculated quarterly in arrears.


 


(b)           Letter
of Credit Fees.


 


(i)            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 


 


67

















 


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.


 


(ii)           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 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.


 


(c)           Other
Fees.  The Borrower shall pay to Wachovia, Barclays
Bank, WCM and Barclays Capital, Bank of America, N.A., JPMorgan Chase Bank
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.


 


2.10                        Computation
of Interest and Fees.


 


All
computations of interest for Base Rate Loans when the Base Rate is determined
by Wachovia’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 


 


68

















 


each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.11(a),
bear interest for one (1) day.  Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


2.11                        Payments
Generally; Administrative Agent’s Clawback.


 


(a)           General. 
All payments to be made by any Credit Party hereunder shall be made without
condition or deduction for any counterclaim, defense, recoupment or
setoff.  All payments of principal and
interest on any Loan shall be payable in the same currency as such Loan is
denominated.  All payments of fees
pursuant to Section 2.09 shall be payable in Dollars.  All payments in respect of Unreimbursed
Amounts shall be payable in the currency provided in Section 2.03.  All other payments herein shall be payable in
the currency specified with respect to such payment or, if the currency is not
specified, in Dollars.  Except as
otherwise expressly provided herein, (x) all payments by the Borrower in
Dollars hereunder shall be made to the Administrative Agent, for the account of
the Lenders to which such payment is owed, at the Administrative Agent’s Office
in Dollars and in Same Day Funds not later than 3:00 p.m. (New York time)
on the date specified herein and (y) all payments by the Borrower in
Alternative Currency hereunder shall be made to the Administrative Agent’s
Office for payments in such Alternative Currency and in Same Day Funds not
later than 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.


 


(b)           (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



 


69

















 


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 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.


 


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


 


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


 


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


 


(f)            Insufficient Funds.  If at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, L/C Borrowings, interest and 


 


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fees then due hereunder, such funds shall be applied (i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward payment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.


 


2.12                        Sharing
of Payments by Lenders.


 


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


 


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


 


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


 


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


 


2.13                        Evidence
of Debt.


 


(a)           The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and evidenced by one or more
entries in the Register maintained by the Administrative Agent, acting solely
for purposes of Treasury Regulation Section 5f.103-1(c) as agent for
the Borrower, in each case in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon.  Any
failure to so record or any error in doing 


 


71

















 


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


 


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


 


(c)           Each
Lender having sold a participation in any of its Obligations, acting solely for
this purpose as agent for the Borrower, shall maintain a register for the
recordation of the names and addresses of such Participants (and each change
thereto, whether by assignment or otherwise) and the rights, interest or obligation
of such Participants in any Obligation, in any Commitment and in any right to
receive any payments hereunder.


 


2.14                        CAM
Exchange.


 


(a)           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 


 


72

















 


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.


 


(b)           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.


 


(c)           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.


 


ARTICLE III


 


TAXES, YIELD PROTECTION AND
ILLEGALITY


 


3.01                        Taxes.


 


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


 


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


 


(c)           Indemnification
by the Borrower.  Without duplication of any
amounts payable under Section 3.01(a), the Borrower shall indemnify
the Administrative Agent, each Lender and 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 


 


73

















 


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, the 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, the
L/C Issuer or the Administrative Agent, as the case may be, determines in good
faith that pursuing such a contest or refund would be materially disadvantageous
to it.


 


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


 


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


 


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


 


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


 


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


 


75

















 


(f)            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 be required to pay any amount
to the Borrower the payment of which would place such Lender or L/C Issuer in a
less favorable net after-tax position that such Lender or L/C Issuer would have
been in if the Indemnified Tax giving rise to such refund had never been
imposed.


 


3.02                        Illegality.


 


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


 


3.03                        Inability
to Determine Rates.


 


If the
Required Lenders determine that for any reason in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank Eurodollar
market for the applicable amount and 


 


76

















 


Interest Period of such Eurodollar Rate Loan, (b) adequate
and reasonable means do not exist for determining the Adjusted Eurodollar Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan, or (c) the Adjusted Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to
make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of
Loans that are Base Rate Loans in the amount specified therein.


 


3.04                        Increased
Cost; Capital Adequacy.


 


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


 


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


 


(b)           Capital
Requirements.  If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the L/C Issuer’s capital 


 


77

















 


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.


 


(c)           Certificates
for Reimbursement.  A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the
L/C Issuer or its holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and delivered to the
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.


 


(d)           Delay
in Requests.  Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s or the L/C
Issuer’s right to demand such compensation, provided that the 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).


 


3.05                        Compensation
for Losses.


 


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


 


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


 


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


 


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


 


including any reasonable loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain such Loan or from fees
payable to terminate the deposits from which such funds were obtained.  A certificate as to the amount of such
payment or liability delivered 


 


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to the Borrower by a Lender (with a copy to the Administrative Agent),
or by the Administrative Agent on behalf of a Lender, shall be conclusive
absent manifest error.


 


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


 


3.06                        Mitigation
Obligations; Replacement of Lenders.


 


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


 


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


 


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


 


3.07                        Survival
Losses.


 


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


 


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3.08                        Additional
Reserve Costs.


 


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


 


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


 


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


 


ARTICLE IV


 


GUARANTY


 


4.01                        The
Guaranty.


 


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


 


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


 


4.02                        Obligations
Unconditional.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4.03                        Reinstatement.


 


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


 


4.04                        Certain
Waivers.


 


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


 


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the Guarantors’ obligations hereunder be absolute,
irrevocable, independent and unconditional under all circumstances.


 


4.05                        Remedies.


 


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


 


4.06                        Rights
of Contribution.


 


The
Guarantors hereby agree as among themselves that, in connection with payments
made hereunder, each Guarantor shall have a right of contribution from each
other Guarantor in accordance with applicable Law.  Such contribution rights shall be subordinate
and subject in right of payment to the Guaranteed Obligations until such time
as the Guaranteed Obligations have been irrevocably paid in full and the
commitments relating thereto shall have expired or been terminated, and none of
the Guarantors shall exercise any such contribution rights until the Guaranteed
Obligations have been irrevocably paid in full and the commitments relating
thereto shall have expired or been terminated.


 


4.07                        Guaranty
of Payment; Continuing Guaranty.


 


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


 


4.08                        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.


 


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ARTICLE V


 


CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS


 


5.01                        Conditions
to Closing Date.


 


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


 


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


 


(b)           [Reserved].


 


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


 


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


 


(ii)           Material Adverse Effect.  There has been no event or circumstance since
December 31, 2007 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.


 


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


 


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


 


Without limiting the generality of the provisions of Section 10.04,
for purposes of determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Credit Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or 


 


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acceptable or satisfactory to a Lender unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.


 


5.02                        Conditions
to the Funding Date.


 


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


 


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


 


(b)           Spin-Off. 
The Administrative Agent shall be 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.  The
Administrative Agent shall be reasonably satisfied that the Spin-Off will be
consummated substantially simultaneously with, or within five (5) Business
Days after, the initial Borrowing of Term Loans hereunder.


 


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


 


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


 


(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 


 


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executed in blank (provided
that with respect to the stock of any Subsidiary of the Borrower, the
Administrative Agent may, in its sole discretion, provide a reasonable amount
of time after the initial funding for the Borrower to deliver such original
certificates); and


 


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


 


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


 


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


 


(ii)     with respect to each Mortgage, a policy of
title insurance (or marked up title insurance commitment having the effect of a
policy of title insurance) insuring the Lien of such Mortgage as a valid first
mortgage Lien on the Mortgaged Property and fixtures described therein in the
amount equal to not less than 115% of the fair market value of such Mortgaged
Property and fixtures, which fair market value is set forth on Schedule 5.02,
which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be
issued by the Title Company, (B) have been supplemented by the following
endorsements: “tie-in” or “cluster” (i.e., policies which insure against losses
regardless of location or allocated value of the insured property up to a
stated maximum coverage amount), usury, first loss, last dollar, zoning,
contiguity, revolving credit, doing business, non-imputation, public road
access, survey, variable rate, environmental lien, subdivision, mortgage
recording tax, separate tax lot, revolving credit, and so-called comprehensive
coverage over covenants and restrictions, in each case to the extent requested
by the Administrative Agent and available on commercially reasonable terms, and
(C) contain no exceptions to title other such as would be permitted under Section 8.01;
provided, that this condition precedent may be waived in the sole
discretion of the Administrative Agent (it being understood that in such case,
the requirements hereof shall become a condition subsequent, to be met in a
timeframe determined by the Administrative Agent in its sole discretion);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(i)            Material Adverse Effect.  There has been no event or circumstance since
December 31, 2007, that has had or would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(o)           Indebtedness. 
After giving effect to the Funding Date, Holdings 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), other Indebtedness incurred in the ordinary
course of business since the Closing Date and otherwise permitted hereunder and
other Indebtedness as may be reasonably acceptable to the Lead Arrangers.


 


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


 


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


 


5.03                        Conditions
to All Credit Extensions.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE VI


 


REPRESENTATIONS AND
WARRANTIES


 


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


 


6.01                        Existence,
Qualification and Power.


 


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


 


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6.02                        Authorization;
No Contravention.


 


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


 


6.03                        Governmental
Authorization; Other Consents.


 


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


 


6.04                        Binding
Effect.


 


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


 


6.05                        Financial
Statements.


 


The
audited consolidated balance sheets of Holdings and its Subsidiaries as of December 31,
2007 and December 31, 2006 and the unaudited consolidated balance sheet as
of March 31, 2008 and March 31, 2007 and, if the Funding Date is on
or after August 31, 2008, June 30, 2008 and June 30, 2007, and
the related consolidated statements of income or operations, shareholders’
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 Holdings
and its Subsidiaries as of the date thereof and its results of operations for 


 


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the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein.


 


The
unaudited pro forma condensed consolidated balance sheet of Holdings 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
consolidated 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 consolidated pro forma
financial condition of the Borrower and its Subsidiaries as at such date and
the consolidated pro forma results of operations of Holdings 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 consolidated financial statements are reasonable.


 


6.06                        No
Material Adverse Effect.


 


Since December 31,
2007, there has been no event or circumstance, either individually or in the
aggregate, that has had or would reasonably be expected to have a Material
Adverse Effect.


 


6.07                        Litigation.


 


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


 


6.08                        No
Default.


 


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


 


6.09                        Ownership
of Property; Liens.


 


Each
of the Borrower and its Subsidiaries has good and valid title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in or right to use, all its other material property,
except as would not reasonably be expected to have a Material Adverse Effect,
and the property of the Consolidated Group is subject to no Liens, other than
Permitted Liens.


 


6.10                        Taxes.


 


Except
as would not reasonably be expected, individually or in the aggregate to have a
Material Adverse Effect:  (a) Holdings
and each of its Subsidiaries (i) has timely filed (or has 


 


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had filed on its behalf) all Tax returns required to
be filed and (ii) has paid prior to delinquency all Taxes levied or
imposed upon it or its properties, income or assets otherwise due and payable
(including in its capacity as a withholding agent), except for Taxes that are
being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided, in accordance with GAAP, if
such contest suspends enforcement or collection of the claim in question; (b) neither
Holdings nor any of its Subsidiaries is aware of any proposed or pending tax
assessments, deficiencies or audits; and (c) neither Holdings nor any of
its Subsidiaries has “participated” in a “listed transaction” within the
meaning of Treasury Regulation Section 1.6011-4.


 


6.11                        ERISA
Compliance.


 


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


 


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


 


(c)           (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred that, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (iii) neither the Borrower nor
any ERISA Affiliate has engaged in a transaction that would reasonably be
expected to be subject to Sections 4069 or 4212(c) of ERISA which in the
case of clause (i) through (iii) above, would
reasonably be expected to have a Material Adverse Effect.


 


6.12                        Subsidiaries.


 


After
giving effect to any modifications or updates pursuant to the last sentence of
this Section 6.12, set forth on Schedule 6.12 is a list of all
Subsidiaries of the Borrower immediately after giving effect to the
consummation of the Spin-Off, together with the jurisdiction of organization,
classes of Capital Stock and ownership and ownership percentages of each such
Subsidiary as of such date.  After giving
effect to any modifications or updates pursuant to the last


 


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


 


6.13                        Margin
Regulations; Investment Company Act.


 


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


 


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


 


6.14                        Disclosure.


 


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


 


6.15                        Compliance
with Laws.


 


Each
member of the Consolidated Group is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions, settlements or
other agreements with any Governmental Authority and decrees applicable to it
or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.


 


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6.16                        Solvency.


 


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


 


6.17                        Intellectual
Property; Licenses, Etc.


 


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


 


6.18                        Security
Agreement.


 


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


 


6.19                        Pledge
Agreement.


 


The
Pledge Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the holders of the Obligations, a legal, valid and
enforceable security interest in 


 


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


 


6.20                        Mortgages.


 


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


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


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


 


7.01                        Financial
Statements.


 


Deliver to the Administrative Agent and each Lender:


 


(a)           as
soon as available, but in any event within ten (10) days of the date
Holdings 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 Holdings,
a consolidated balance sheet of Holdings and the


 


95

















 


Consolidated Group as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by (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; provided that,
if Holdings shall own material assets other than the Capital Stock of the
Borrower or have material liabilities (other than in respect of the Obligations
and the guarantee of the Senior Notes), the Borrower shall provide in lieu of
the financial statements and other information described above, within the time
periods set forth above, a consolidated balance sheet of Borrower and its
Subsidiaries as at the end of each fiscal year of Borrower, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by 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


 


(b)           as
soon as available, but in any event within ten (10) days of the date
Holdings 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
Holdings, a consolidated balance sheet of the Holdings and the Consolidated
Group as at the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for such fiscal
quarter and for the portion of Holdings’ 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, shareholders’ equity and cash flows of the Consolidated Group in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; provided that, if Holdings shall own material
assets other than the Capital Stock of the Borrower or have material
liabilities (other than in respect of the Obligations and the guarantee of the
Senior Notes) the Borrower shall provide, in lieu of the financial statements
and other information described above, within the time periods set forth above,
a consolidated balance sheet of Borrower and its Subsidiaries as at the end of
each of the first three (3) fiscal quarters of each fiscal year of
Borrower, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal quarter and for the portion of the Borrower’s
fiscal year then ended, 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 


 


96

















 


presenting the financial condition, results of operations, shareholders’
equity and cash flows of the Consolidated Group in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.


 


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.


 


7.02                        Certificates;
Other Information.


 


Deliver to the Administrative Agent and each Lender:


 


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


 


(b)           within
five (5) Business Days following each delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower (i) commencing
with the fiscal quarter ended September 30, 2008, setting forth computations
in reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the financial covenants contained herein, (ii) certifying
that no Default or Event of Default exists as of the date thereof (or the
nature and extent thereof and proposed actions with respect thereto), (iii) setting
forth a list of each Subject Disposition and Involuntary Disposition effected
during the fiscal quarter or fiscal year, as the case may be, covered by such
financial statements, to the extent the Net Cash Proceeds received in such
Subject Disposition (or series of related Subject Dispositions) or Involuntary
Disposition (or series of related Involuntary Dispositions) exceed $1.0 million
or the Net Cash Proceeds received in all Subject Dispositions or Involuntary
Dispositions effected during such fiscal year exceeds $2.5 million (or the
elapsed portion of such fiscal year in the case of a Compliance Certificate
relating to a fiscal quarter), and whether the Borrower and its Subsidiaries
intend to reinvest the Net Cash Proceeds thereof or to use such Net Cash
Proceeds to prepay the Loans and (iv) a calculation of the Cumulative
Credit (in reasonable detail) as of the last day of the period covered by such
financial statements;


 


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


 


(d)           promptly,
such additional information regarding the business, financial or corporate
affairs of any Credit Party or any Subsidiary of a Credit Party, or compliance
with the terms 


 


97

















 


of the Credit Documents, as the Administrative Agent or any Lender
(acting through the Administrative Agent) may from time to time reasonably request;


 


(e)           promptly
after the furnishing thereof, copies of any material financial statement or
report furnished to any holder of material Indebtedness of any Credit Party or
of any of its Subsidiaries pursuant to the terms of any indenture, loan or
credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;


 


(f)            as
soon as available, but in any event no more than sixty (60) days following the
beginning of each fiscal year of Holdings (or, if Holdings shall have any
material assets other than Capital Stock of the Borrower or any material
liabilities other than in respect of the Obligations and the guarantee of the
Senior Notes, the Borrower), annual expense budgets of Holdings, the Borrower
and the Subsidiaries (or, if applicable, the Borrower and the Subsidiaries) on
a consolidated basis, for such fiscal year of Holdings or Borrower, as applicable;
and


 


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


 


Documents
required to be delivered pursuant to 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, WCM and/or Barclays
Capital 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 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 


 


98

















 


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, WCM,
Barclays Capital 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, WCM and Barclays Capital shall be entitled to treat any Credit Party
Materials that are not marked or otherwise indicated “PUBLIC” as being suitable
only for posting on a portion of the Platform not marked as “Public Investor.”


 


7.03                        Notification.


 


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


 


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


 


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


 


7.04                        Preservation
of Existence.


 


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


 


7.05                        Payment
of Taxes and Other Obligations.


 


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


 


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reserves, determined in accordance with GAAP, have been established, if
such contest suspends enforcement or collection of the claim in question.


 


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


 


7.06                        Compliance
with Law.


 


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


 


7.07                        Maintenance
of Property.


 


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


 


7.08                        Insurance.


 


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


 


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


 


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7.09                        Books
and Records.


 


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


 


7.10                        Inspection
Rights.


 


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


 


7.11                        Use of
Proceeds.


 


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


 


7.12                        Joinder
of Subsidiaries as Guarantors.


 


Promptly
notify the Administrative Agent of the formation, acquisition (or other receipt
of interests) or existence of any Domestic Subsidiary that is not a Guarantor
(other than a non-Wholly Owned Subsidiary invested in pursuant to Section 8.02(k) (unless
such Subsidiary shall guarantee or provide Support Obligations in respect of
any material Indebtedness (other than the Obligations) of the Borrower or
another Subsidiary), or an Immaterial Subsidiary), which notice shall include
information as to the jurisdiction of organization, the number and class of
Capital Stock outstanding and ownership thereof (including options, warrants,
rights of conversion or purchase relating thereto), and with respect to any
such Subsidiary, within thirty (30) days but in no event prior to the Spin-Off
Date (or up to ten (10) days later, if the Administrative Agent, in
its sole discretion, shall agree thereto in writing) of the formation, acquisition or other
receipt of interests thereof, cause the joinder of such Subsidiary as a
Guarantor pursuant to Joinder


 


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Agreements (or such other documentation in form and
substance reasonably acceptable to the Administrative Agent) accompanied by
Organization Documents, take all actions necessary to create and perfect a
security interest in its assets to the extent required by the Security
Agreement or Pledge Agreement and, if reasonably requested by the Administrative
Agent, deliver favorable opinions of counsel to such Subsidiary, in form and
substance reasonably satisfactory to the Administrative Agent.  For the avoidance of doubt, if an Immaterial
Subsidiary shall become a Material Subsidiary, such Subsidiary shall thereupon
comply with the foregoing.


 


7.13                        Pledge
of Capital Stock.


 


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


 


7.14                        Pledge
of Other Property.


 


With
respect to each Credit Party, pledge and grant a security interest in all of
its personal property, tangible and intangible, owned and leased (except (a) Excluded
Property, (b) as otherwise set forth in Section 7.13 with
respect to Capital Stock and (c) as otherwise set forth in the Collateral
Documents) to secure the Obligations, within thirty (30) days (or up to ten (10) days



 


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later, if the Administrative
Agent, in its sole discretion, shall agree thereto in writing) of the acquisition or creation thereof
pursuant to such pledge and security agreements, joinder agreements or other
documents as may be required, together with opinions of counsel and any filings
and deliveries reasonably requested by the Collateral Agent in connection
therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Administrative Agent.


 


7.15                        Further
Assurances Regarding Collateral.


 


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


 


(b)           In the event the Borrower or any
other Credit Party acquires (i) a fee interest in any real property after
the Closing Date (excluding Excluded Property) and such real property (together
with any improvements thereon), when taken together with all contiguous parcels
of real property interests (or other parcels of real property interests
proximately located and used in connection therewith) then held by any Borrower
or any other Credit Party, has a fair market value of at least $2.5 million,
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) of such acquisition to the Collateral
Agent a fully executed Mortgage (subject to all Permitted Liens) over such real
property in form and substance reasonably satisfactory to the Administrative
Agent, together with such Title Insurance Policies, Surveys, appraisals (if
required by law), “Life-of-Loan” flood hazard determinations, evidence of
insurance (including, without limitation, flood insurance if required by Section 7.08(b)),
legal opinions and other documents and certificates, in each case, in form and
substance reasonably satisfactory to the Administrative Agent (or, in the case
of the Mortgage, substantially in the form of Exhibit 1.01C), as
shall be reasonably requested by the Administrative Agent.


 


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


 


103

















 


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


 


7.16                        Holdings Guarantee.


 


The Borrower shall ensure
that on or before the Spin-Off Date: (i) Holdings shall have acquired 100%
of each class of outstanding Capital Stock of the Borrower, (ii) the
Collateral Agent shall have received certificates representing 100% of the
issued and outstanding Capital Stock of the Borrower together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
Holdings, (iii) Holdings shall have become a party to the Credit Agreement
and the Pledge Agreement and shall have taken all actions (including, without
limitation, the filing of UCC financing statements) and necessary to perfect
the security interest of the Collateral Agent in Holdings’ Collateral to the
extent required by the Pledge Agreement and (iv) such customary legal
opinions, documents and certificates relating to Holdings and the Credit Documents
as the Collateral Agent shall reasonably request in connection therewith shall
have been delivered to the Collateral Agent. 
Upon compliance with the requirements of the foregoing sentence,
Holdings shall have no material assets other than the Capital Stock of the
Borrower or material liabilities other than the Obligations and the guarantee
of the Senior Notes (it being understood the restriction in this sentence shall
not restrict the activities of Holdings following such compliance).


 


7.17                        Post-Closing
Matters.


 


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


 


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


 


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


 


(ii)           endorsements to Title Policy
delivered to the Collateral Agent insuring the Mortgage encumbering such
Mortgaged Property, paid for by the Borrower or the applicable Credit Party, (1) eliminating
the general or standard survey exceptions to the extent not previously
eliminated but reading in any other exceptions shown on the Survey, (2) providing
the comprehensive and survey endorsements thereto if requested by the Collateral
Agent, as well as any other endorsements reasonably requested by the Collateral
Agent to the extent not previously provided which were omitted solely as a
result of the 


 


104

















 


applicable Credit Party’s
inability to obtain and deliver a Survey contemporaneously with said Title
Policy and (3) otherwise amending the same so that the requirements set
forth in clause (ii) of Section 5.02(d) are satisfied; provided,
in no event shall the Title Policy or associated endorsements be required to
endorse or eliminate exceptions that constitute Permitted Liens; and


 


(iii)          an amendment (in form and substance
reasonably acceptable to the Collateral Agent) to the Mortgage and fixture
filing encumbering such Mortgaged Property amending the legal description
therein, if necessary in the reasonable judgment of the Collateral Agent in
light of the Survey delivered under this Section 7.17 (together
with a modification endorsement to the Title Policy delivered to the Collateral
Agent insuring the Mortgage encumbering such Mortgaged Property and opinions of
local counsel with respect thereto to the extent necessary in the reasonable
judgment of the Collateral Agent, in each case in form and substance reasonably
acceptable to the Collateral Agent).


 


(c)           With
respect to each Mortgaged Property, Borrower will use, and will cause each
applicable Credit Party to use, commercially reasonable efforts to obtain such
consents, estoppels, tenant subordination agreements or other instruments as
shall reasonably be deemed necessary by the Collateral Agent as soon as
reasonably practicable.  No Credit Party
shall be required to make any economic concessions to obtain any such consents,
estoppels, tenant subordination agreements or other instruments.


 


(d)           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 a local law pledge
agreement and opinion of counsel, in form and substance reasonably satisfactory
to the Collateral Agent, with respect to the pledge to the Collateral Agent of
sixty-five percent (65%) of the Capital Stock of Interval UK Holdings Limited.


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


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


 


8.01                        Liens.


 


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


 


(a)           Liens
created pursuant to the Credit Documents;


 


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


 


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(c)           Liens
existing on the Closing Date and listed on Schedule 8.01, or, to the
extent not so listed, Liens, which, when taken together with all other Liens
existing on the Closing Date and not so listed, secure Indebtedness in an
aggregate principal amount not exceeding $5.0 million, in each case together
with any extensions, replacements, modifications or renewals of the foregoing; provided
that the collateral interests are not broadened or increased or secure any
Property not secured by such Liens on the Closing Date (but shall be permitted
to apply to after-acquired property affixed or incorporated into the property
covered by such Lien and the proceeds and products of the foregoing);


 


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


 


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


 


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


 


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


 


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


 


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


 


106

















 


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);


 


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


 


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


 


(l)            Liens
in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods and Liens
deemed to exist in connection with Investments in repurchase agreements that
constitute Investments permitted by Section 8.02 hereof;


 


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


 


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


 


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


 


(p)           other
Liens, provided that such Liens do not secure obligations in excess of
the greater of (x) $25.0 million and (y) 3.0% of Consolidated Total
Assets at any one time outstanding; provided  further that in no
event may Liens existing under this subclause (p) secure
obligations in excess of $35.0 million;


 


(q)           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);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8.02                        Investments.


 


Make or permit to exist any Investments, except:


 


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


 


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


 


(c)           to
the extent not prohibited by applicable Law, advances to officers, directors
and employees and consultants of the Borrower and Subsidiaries made for travel,
entertainment, relocation and other ordinary business purposes in an aggregate
amount not to exceed $2.5 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 Holdings to the extent such advance is
immediately contributed to the Borrower in cash as common equity;


 


(d)           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and 


 


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Investments received in satisfaction or partial satisfaction thereof
from financially troubled account debtors to the extent reasonably necessary in
order to prevent or limit loss and any prepayments and other credits to
suppliers, clients, developers or purchasers or sellers of goods or services
made in the ordinary course of business;


 


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


 


(f)            Investments
by the Borrower and Domestic Subsidiaries in Foreign Subsidiaries in an
aggregate amount at any time not to exceed the greater of $15.0 million and
2.0% of Consolidated Total Assets at such time;


 


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


 


(h)           Support
Obligations incurred pursuant to Section 8.03;


 


(i)            Investments
comprised of Permitted Acquisitions;


 


(j)            advances in the ordinary course of business to
secure developer contracts of the Borrower and its Subsidiaries;


 


(k)           Investments
at any time outstanding in an aggregate amount not to exceed the greater of
$20.0 million and 2.5% of Consolidated Total Assets at such time plus, so long
as (x) no Default shall have occurred and be continuing or exist after
giving effect thereto and (y) after giving effect on a Pro Forma Basis to
the Investment to be made, as of the last day of the most recently ended fiscal
quarter at the end of which financial statements were required to have been
delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements, as of
the last day of the most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10, the amount
of the Cumulative Credit at such time (and
if the Investment is greater than $10.0 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 (other than Holdings) and such
Person thereafter becomes a Domestic Credit Party (other than Holdings), such
Investment shall thereafter be deemed to have been made pursuant to Section 8.02(e);


 


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


 


(m)          Investments
contemplated by Section 8.12;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8.03                        Indebtedness.


 


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


 


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


 


110

















 


(b)           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;


 


(c)           capital
lease obligations and purchase money Indebtedness (including obligations in
respect of capital leases) to finance the purchase or acquisition of
fixed assets, at any time outstanding (when aggregated with the aggregate amount
of refinancing Indebtedness outstanding at such time pursuant to Section 8.03(l) in
respect of Indebtedness incurred pursuant to this Section 8.03(c)) not to exceed the greater of $40.0
million and 4.5% of Consolidated Total Assets; provided that such Indebtedness
when incurred shall not exceed the purchase price of the asset(s) financed;


 


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


 


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


 


(f)            unsecured
Indebtedness of the Borrower to the extent (i) no Default or Event of
Default has occurred and is continuing or would result from the incurrence
thereof at such time; (ii) after giving pro forma effect to the incurrence
of such Indebtedness, as of the last day of the most recently ended fiscal
quarter at the end of which financial statements were required to have been
delivered pursuant to Section 7.01(a) or (b) (or,
prior to such first required delivery date for such financial statements, as of
the last day of the most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10 (and if the Indebtedness
incurred is greater than $10.0 million, then the Borrower shall deliver a
certificate of a Responsible Officer as to the satisfaction of the requirements
in this clause (ii)); (iii) such Indebtedness matures no earlier
than the Term Loans and has a Weighted Average Life to Maturity that is no
shorter than the Term Loans; (iv) such Indebtedness does not have
prepayment or redemption events that are less favorable to Holdings and its
Subsidiaries than those relating to the Term Loans; and (v) such Indebtedness
has other terms that are, taken as a whole, not materially less favorable to
Holdings and its Subsidiaries than the terms of the Credit Agreement; provided
that such Indebtedness may benefit from unsecured guarantees from the
Guarantors on the same basis as the Borrower has issued such Indebtedness;


 


(g)           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 3.0% of Consolidated Total Assets
at such time;


 


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


 


111

















 


to such first required delivery date for such financial statements, as
of the last day of the most recent period referred to in the first sentence of Section 6.05),
the Borrower would be in compliance with Section 8.10;


 


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


 


(j)            Indebtedness
of the Borrower and its Subsidiaries (and guarantees thereof, without
duplication) not contemplated in the foregoing clauses of this Section 8.03
in an aggregate principal amount at any time outstanding not to exceed the
greater of $25.0 million and 3.0% of Consolidated Total Assets at such time;


 


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


 


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


 


(m)          overdrafts
paid within 5 Business Days;


 


(n)           Indebtedness
in respect of trade letters of credit, warehouse receipts or similar instruments
issued to support performance obligations (other than obligations in respect of
Indebtedness) in the ordinary course of business; provided that the
aggregate stated amount of any such trade letters of credit, warehouse receipts
or similar instruments shall not exceed, as of the date of issuance, amendment
or extension thereof, $15.0 million minus the aggregate L/C Obligations outstanding
on such date;


 


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


 


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


 


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


 


(r)            Indebtedness
consisting of promissory notes issued by the Borrower to current or former
officers, directors and employees, their respective estates, spouses or former
spouses issued in exchange for the purchase or redemption by Holdings of
Qualified Capital Stock of Holdings 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);


 


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


 


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


 


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


 


8.04                        Mergers
and Dissolutions.


 


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


 


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


 


113

















 


surviving entity shall be
a Foreign Subsidiary and the Borrower and its Subsidiaries shall be in
compliance with the requirements of Section 7.13;


 


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


 


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


 


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


 


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


 


8.05                        Dispositions.


 


Make
any Subject Disposition or Specified Intercompany Transfer, unless (i) in
the case of a Subject Disposition only, at least seventy-five percent (75%) of
the consideration received from each such Subject Disposition is cash or Cash
Equivalents, (ii) such Subject Disposition or Specified Intercompany
Transfer is made at fair market value and (iii) the aggregate amount of
Property so Disposed (valued at fair market value thereof) in all Subject
Dispositions and Specified Intercompany Transfers in any fiscal year of the
Borrower does not exceed $30.0 million; provided that any amount not
used in any such fiscal year may be carried forward and used in the two immediately
succeeding fiscal years of the Borrower (but no other fiscal years).


 


8.06                        Restricted
Payments.


 


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


 


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


 


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


 


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


 


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(d)           the
Borrower may declare and pay dividends or make other distributions to Holdings
in respect of (i) overhead, legal, accounting and administrative expenses
of Holdings, (ii) Tax Distributions and franchise taxes and other fees,
taxes and expenses required to maintain the existence of Holdings and (iii) customary
salary, bonus and other benefits payable to, and indemnities provided on behalf
of, officers and employees of Holdings, in each case in order to permit
Holdings to make such payments; provided that in each case under this Section 8.06(d),
the amount of such dividends and distributions shall not exceed the portion of
any dividends or distributions referred to in this Section 8.06(d) that
are directly allocable to the Borrower and its Subsidiaries (which shall be
deemed to be 100% for so long as Holdings owns no material assets other than
the Capital Stock of the Borrower and does not have any material obligations
other than the Obligations and the guarantee of the Senior Notes);


 


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


 


(f)            the
Borrower may make Restricted Payments at any time in an aggregate amount not to
exceed $25.0 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 $10.0 million, then the
Borrower shall deliver a certificate of a Responsible Officer as to the
satisfaction of the requirements in this clause (i)) and (ii) no
Default shall have occurred and be continuing or exist after giving effect
thereto, the amount of the Cumulative Credit at such time;


 


(g)           the
Borrower may make payments or prepayments of principal on, or redemptions,
repurchases or acquisitions for value of, its Indebtedness (other than
Subordinated Indebtedness) that is not secured by a Lien (x) in an
aggregate principal amount for all such payments, prepayments, redemptions,
repurchases and acquisitions not to exceed $100.0 million or (y) at any time
following the date that no Term Loans or Incremental Term Loans are
outstanding;


 


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


 


(i)            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; and


 


(j)            the
Borrower may make distributions to Holdings to finance any Investment then
permitted to be made pursuant to any clause of Section 8.02; provided
that (A) such distribution shall be made substantially concurrently with
the closing of such Investment and (B) Holdings shall, immediately
following the closing of such Investment, cause (1) all property acquired
(whether assets or Capital Stock) to be contributed to the Borrower or a
Subsidiary Guarantor (or any other Subsidiary if such Investment would not be
required to be held by a Subsidiary Guarantor or the Borrower pursuant to such
clause of Section 8.02) and, if such Investment results in 


 


115

















 


a Person becoming a Subsidiary, cause such Person to become a
Subsidiary Guarantor to the extent such clause of Section 8.02
would require such Person to become a Subsidiary Guarantor, in each case within
the time frame that would have otherwise applied if such Investment were made
pursuant to such clause of Section 8.02 or (2) the merger (to
the extent permitted by Section 8.04) of the Person formed or
acquired into the Borrower or a Subsidiary Guarantor (or any other Subsidiary
if such Person would not be required to be the Borrower or a Subsidiary
Guarantor pursuant to such clause of Section 8.02) in order to
consummate such Permitted Acquisition or Investment; provided that for
all purposes under the Credit Documents, the amount of such distributions shall
reduce the amount permitted to be used pursuant to such clause of Section 8.02
to the extent such clause limits the amounts permitted to be invested.


 


8.07                        Change
in Nature of Business.


 


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


 


8.08                        Change
in Accounting Practices or Fiscal Year.


 


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


 


8.09                        Transactions
with Affiliates.


 


Enter
into any transaction of any kind with any Affiliate of the Borrower (other than
between or among (x) the Borrower and/or one or more Subsidiary Guarantors
or (y) one or more Subsidiaries of the Borrower that are not Guarantors),
whether or not in the ordinary course of business, other than (i) on fair
and reasonable terms substantially as favorable in all material respects to the
Borrower or the applicable Subsidiary as would be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm’s-length transaction with a
Person other than an Affiliate, (ii) Restricted Payments permitted by Section 8.06
(other than Section 8.06(c)), (iii) Investments permitted by Section 8.02(c),
(f), (g), (u) or (x) or, to the extent
that such transaction is with a Person that becomes an Affiliate of the
Borrower or a Subsidiary solely as a result of such transaction, any
transaction pursuant to Section 8.02(i) or (k) and
(iv) transactions contemplated by Section 8.12 shall be permitted.


 


8.10                        Financial
Covenants.


 


(a)           Consolidated
Total Leverage Ratio.  Permit the Consolidated Total Leverage Ratio
as of the last day of any fiscal quarter ending during any period listed in the
table below to be greater than the ratio set forth opposite such period.


 


	
  Date

  	
   

  	
  Consolidated Total

  Leverage Ratio

  	
   

  
	
  Closing Date -
  December 31, 2009

  	
   

  	
  3.90 to 1.00

  	
   

  
	
  January 1, 2010 -
  December 31, 2010

  	
   

  	
  3.65 to 1.00

  	
   

  
	
  January 1, 2011
  and thereafter

  	
   

  	
  3.40 to 1.00

  	
   

  



 


116

















 


(b)           Consolidated Interest Coverage Ratio. 
Permit the Consolidated Interest Coverage Ratio as of the last day of
any fiscal quarter ending during any period listed in the table below to be
less than the ratio set forth opposite such period.


 


	
  Date

  	
   

  	
  Consolidated Interest

  Coverage Ratio

  	
   

  
	
  Closing Date -
  December 31, 2009

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  January 1, 2010
  and thereafter

  	
   

  	
  3.00 to 1.00

  	
   

  



 


8.11                        Limitation
on Subsidiary Distributions.


 


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


 


117

















 


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 Subsidiary Guarantor; (xvi) restrictions on cash or other
deposits imposed by customers under contracts entered into in the ordinary
course of business; and (xvii) any encumbrances or restrictions imposed by
any refinancings that are otherwise permitted by the Credit Documents of the
contracts, instruments or obligations referred to above; provided that such refinancings
are no more materially restrictive with respect to such encumbrances and
restrictions than those prior to such amendment or refinancing.


 


8.12                        Spin-Off.


 


Notwithstanding
anything to the contrary provided herein or any Credit Document, nothing in
this Credit Agreement shall prohibit the Spin-Off and any transaction
undertaken in connection therewith (including the conversion of the Borrower or
any of its Subsidiaries to a limited liability company in the country of its
organization, Restricted Payments or intercompany transfers of cash, Subsidiaries
or other assets among Holdings, 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 Holdings, 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, so long as after giving effect
thereto the consolidated unrestricted cash and Cash Equivalent balance in
deposit or securities accounts of the Borrower and its Subsidiaries is no less
than $50 million (without deduction for uncleared checks and without including
the proceeds of any Revolving Loans or Swingline Loans) on the Spin-Off Date after
giving effect to all such dividends and payments.  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 prior practice between the
Closing Date and the Spin-Off Date shall not be prohibited by the terms of this
Credit Agreement.


 


8.13                        Transfers/Investments
with respect to Certain Subsidiaries.


 


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


 


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ARTICLE IX


 


EVENTS OF DEFAULT AND
REMEDIES


 


9.01                        Events
of Default.


 


Any of the following shall constitute an Event of
Default:


 


(a)           Non-Payment. 
The Borrower or any other Credit Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three (3) Business Days after the same
becomes due, any interest on any Loan or any regularly accruing fee due
hereunder or any other amount payable hereunder or under any other Credit
Document; or


 


(b)           Specific
Covenants.  The Borrower or any other Credit Party fails
to perform or observe any term, covenant or agreement contained in any of Section 7.03(a),
7.11, 7.16 or Article VIII or, with respect to the
existence of the Borrower only, Section 7.04; or


 


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


 


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


 


(e)           Cross-Default.  (i) Any
member of the Consolidated Group or, upon and following the Spin-Off Date,
Holdings (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 $15.0 million or (B) fails to observe or perform any other
agreement or condition relating to any Indebtedness or Support Obligations or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which failure or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Support Obligations (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to
become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated 


 


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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 $15.0 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 Holdings, 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 Holdings, 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 Holdings, the Borrower and its Subsidiaries exceeds $15.0 million; or


 


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


 


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


 


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


 


(i)            Judgments.  There is entered against Holdings or 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 $15.0 million (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage or otherwise discharged),
and there is a period of 30 consecutive days during which a stay of enforcement
of such judgments, by reason of a pending appeal or otherwise, is not in effect;
or


 


(j)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan that has resulted or would reasonably
be expected to result in liability of a Credit Party under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $15.0 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 


 


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liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $15.0 million; or


 


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


 


(l)            Collateral Documents.  Any
Collateral Document after delivery thereof pursuant to Section 5.02,
7.13, 7.14 or 7.16 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 $5.0
million (other than by reason of (x) the express release thereof pursuant
to Section 10.10, (y) the failure of the Collateral Agent to
retain possession of Collateral physically delivered to it or (z) the
failure of the Collateral Agent to timely file Uniform Commercial Code
continuation statements).


 


9.02                        Remedies
upon Event of Default.


 


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


 


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


 


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


 


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


 


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it or
to the Lenders under the Credit Documents or applicable Law;


 


provided, however, that upon
the occurrence of an Event of Default under Section 9.01(f) or
(h), the obligation of each Lender to make Loans and any obligation of
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 


 


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shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.


 


9.03                        Application
of Funds.


 


After
the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:


 


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


 


Second, to payment of that portion
of the Obligations constituting fees, indemnities and other amounts (other than
principal, interest, the Commitment Fee, the Facility 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 Facility Fees, the Commitment
Fee, 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.


 


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 


 


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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.


 


ARTICLE X


 


AGENTS


 


10.01                 Appointment
and Authorization of Administrative Agent and Collateral Agent.


 


(a)           Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Wachovia 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.


 


(b)           Each
Lender hereby irrevocably appoints, designates and authorizes the Collateral
Agent to take such action on its behalf under the provisions of this Credit
Agreement and each Collateral Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Credit
Agreement or any Collateral Document, together with such powers as are
reasonably incidental thereto.  In this
connection, the Collateral Agent, and any co-agents, sub-agents and
attorneys-in-fact appointed by the Collateral Agent pursuant to Section 10.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Collateral Agent), shall be
entitled to the benefits of all provisions of this Article X and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Credit Documents)
as if set forth in full herein with respect thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any Collateral Document, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein or therein, nor shall
the Administrative Agent or the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Credit Agreement or any Collateral Document or
otherwise exist against the Administrative Agent or the Collateral Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the Collateral
Documents with reference to the Administrative Agent or the Collateral Agent is
not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.  The Collateral Agent shall act on behalf of
the Lenders with respect to any Collateral and the Collateral Documents, and
the Collateral Agent shall have all of the benefits and immunities (i) provided
to the Administrative Agent under the Credit Documents with respect to any acts
taken or omissions suffered by the Collateral Agent in connection with any
Collateral or 


 


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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.


 


(c)           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.


 


10.02                 Rights as a
Lender.


 


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


 


10.03                 Exculpatory
Provisions.


 


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


 


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


 


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


 


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


 


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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.


 


10.04                 Reliance by
Administrative Agent and Collateral Agent.


 


The
Administrative Agent and Collateral Agent shall each be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  Each of the Administrative Agent and Collateral
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or 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.


 


10.05                 Delegation of
Duties.


 


The
Administrative Agent and the Collateral Agent may perform any and all of their
duties and exercise their rights and powers hereunder or under any other Credit
Document by or through any one or more sub-agents appointed by the
Administrative Agent or Collateral Agent, as the case may be.  The Administrative Agent, Collateral Agent
and any such sub-agent may perform any and all of their duties and exercise
their rights and powers by or through their


 


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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.


 


10.06                 Resignation of
the Administrative Agent or the Collateral Agent.


 


Each
of the Administrative Agent and the Collateral Agent may at any time give notice
of its resignation to the Lenders, 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 Wachovia 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.


 


10.07                 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.


 


10.08                 No Other
Duties.


 


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


 


10.09                 Administrative
Agent or Collateral Agent May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent or Collateral
Agent (irrespective of whether the principal of any Loan or L/C Obligation
shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise:


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
(other than obligations under Swap Contracts or Treasury Management Agreements
to which the Administrative Agent or the Collateral Agent is not a party) that
are owing and unpaid and to file such other 


 


127

















 


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


 


(b)           to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


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


 


10.10                 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:


 


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


 


(b)           to
release any Lien on any property granted to or held by the Collateral Agent under
any Credit Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than (A) contingent
indemnification obligations not then due and payable 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 Credit Party, other than
Holdings), or (iii) subject to Section 11.01, if approved,
authorized or ratified in writing by the Required Lenders; and


 


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


 


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


 


10.11                 Withholding
Tax.


 


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


 


10.12                 Treasury
Management Agreements and Swap Contracts.


 


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


 


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ARTICLE XI


 


MISCELLANEOUS


 


11.01                 Amendments,
Etc.


 


No
amendment or waiver of, or any consent to deviation from, any provision of this
Credit Agreement or any other Credit Document shall be effective unless in
writing and signed by the Borrower or the applicable Credit Party, as the case
may be, and the Required Lenders and the Administrative Agent (at the direction
of the Required Lenders), and each such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given; provided, however, that:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(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, or


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)           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, as the case may be;


 


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


 


(g)           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(g) or
the definition of “Required Dollar Revolving Lenders”;


 


(h)           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(h) or
the definition of “Required Approved Currency Revolving Lenders”;


 


(i)            (i) 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;


 


(j)            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;


 


(k)           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


 


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


 


provided, however, that
notwithstanding anything to the contrary contained herein, (i) no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender, (ii) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges
that the provisions of Section 1126(c) of the Bankruptcy Code of the
United States supersedes the unanimous consent provisions set forth herein, (iv) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding, (v) Section 11.06(h) may
not be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by a SPC at the time of
such amendment, waiver or other modification, and (vi) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto.


 


Notwithstanding
anything to the contrary contained in this Section 11.01, (a) if
the Administrative Agent and the Borrower shall have jointly identified an
obvious error (including, but not limited to, an incorrect cross-reference) or
any error or omission of a technical nature, in each case, in any provision of
any Credit Document, then the Administrative Agent and/or the Collateral Agent
(acting in their sole discretion) and the Borrower or any other relevant Credit
Party 


 


132

















 


shall be permitted to amend such provision or cure any
ambiguity, defect or inconsistency and such amendment shall become effective
without any further action or consent of any other party to any Credit Document
and (b) the Borrower and the Administrative Agent and/or the Collateral
Agent shall have the right to amend any Credit Document without notice to or
consent of any other person to the extent described in the last paragraph of
each of Sections 2.01(e) and (f) and in Section 1.08.


 


11.02                 Notices;
Effectiveness; Electronic Communication.


 


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


 


(i)            if to the Borrower, the
Administrative Agent, 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).


 


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


 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent (a) to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, if available, return e-mail or
other written acknowledgement) and (b) by facsimile shall be deemed
received upon the sender’s receipt of a notice of the successful transmission
of such facsimile or 


 


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upon the recipient’s written acknowledgement of
receipt of such facsimile, provided, in each case, that if such notice
or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.


 


(c)           THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE CREDIT PARTY MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE CREDIT PARTY MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent,
the Collateral Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to any Credit Party, Lender, L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any Credit Party’s, the
Collateral Agent’s or the Administrative Agent’s transmission of Credit Party
Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent jurisdiction
by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Credit Party,
Lender, L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).


 


(d)           Change
of Address, Etc.  Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swingline Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. 
Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swingline Lender.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.


 


(e)           Reliance
by Administrative Agent, L/C Issuer and Lenders.  The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Loan Notices
for Swingline Loans) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related 


 


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Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly
given by or on behalf of the Borrower. 
All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.


 


11.03                 No Waiver;
Cumulative Remedies; Enforcement.


 


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


 


Notwithstanding
anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit
Documents against the Credit Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Credit Documents, (b) the
L/C Issuer or the Swingline Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender,
as the case may be) hereunder and under the other Credit Documents, (c) any
Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.12), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Credit Party under any
Debtor Relief Law; and provided, further, that if at any time
there is no Person acting as Administrative Agent hereunder and under the other
Credit Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 9.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.12,
any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.


 


11.04                 Expenses;
Indemnity; Damage Waiver.


 


(a)           Costs
and Expenses.  The Borrower shall pay (i) all
reasonable documented out-of-pocket expenses incurred by the Administrative
Agent, the Collateral Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and the
Collateral Agent), in connection with the administration, syndication and
closing of the credit facilities provided for herein, the preparation, due
diligence, negotiation, execution, delivery and administration of this Credit
Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal 


 


135

















 


or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer), and
all fees and time charges for attorneys who may be employees of the
Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in
connection with this Credit Agreement and the other Credit Documents, including
its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


 


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


 


(c)           Reimbursement
by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsections (a) or
(b) of this Section to be paid by it to the Administrative
Agent or the Collateral Agent, as the case may be, (or any sub-agent 


 


136

















 


thereof) the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent or the
Collateral Agent, as the case may be, (or any such sub-agent), the L/C Issuer
or such Related Party, as the case may be, such Lender’s Aggregate Commitment
Percentage or, in the case of L/C Obligations, Dollar Revolving Commitment
Percentage (as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent
or the Collateral Agent, as the case may be,(or any such sub-agent) or the L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent or the Collateral Agent, as the
case may be, (or any such sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection
(c) are subject to the provisions of Section 2.11(d).


 


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


 


(e)           Payments. 
All amounts due under this Section shall be payable not later than
ten (10) Business Days after demand therefor.


 


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


 


11.05                 Payments Set
Aside.


 


To the
extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent, the Collateral Agent, the L/C Issuer or any Lender, or the
Administrative Agent, the Collateral Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the Collateral Agent, the L/C Issuer
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and L/C Issuer severally agrees to pay
to the Administrative Agent or the Collateral Agent, as the case may be, on
demand its applicable share (without duplication) of any amount so recovered 


 


137

















 


from or repaid by the Administrative Agent or the
Collateral Agent, as the case may be, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal
to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Credit
Agreement.


 


11.06                 Successors and
Assigns.


 


(a)           Successors
and Assigns Generally.  The provisions of this Credit
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Borrower nor any other Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender (other than in connection
with a transaction permitted by Section 8.04) and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Credit Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Credit Agreement.


 


(b)           Assignments
by Lenders.  Any Lender may at any time assign to one (1) or
more Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment and the
Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swingline Loans) at the time owing to it); provided
that


 


(i)            except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than (A) in the case of Revolving Commitments and
Revolving Loans, $5.0 million, and (B) in the case each of the Term Loans,
$1.0 million, unless, in each case, each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed), it being understood that assignments to a Lender or an Affiliate of a
Lender or an Approved Fund shall not be subject to such minimum amounts;


 


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(ii)           each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Dollar Revolving
Lender’s rights and obligations under this Credit Agreement with respect to the
Dollar Revolving Loans and the Dollar Revolving Commitment assigned, except
that this clause (ii) shall not apply to rights in respect of
Swingline Loans;


 


(iii)          each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Approved Currency
Revolving Lender’s rights and obligations under this Credit Agreement with
respect to the Approved Currency Revolving Loans and the Approved Currency
Revolving Commitment assigned;


 


(iv)          each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Term Loan Lender’s
rights and obligations under this Credit Agreement with respect to the Term
Loans or Term Loan Commitment assigned


 


(v)           any assignment of (A) a Dollar
Revolving Commitment and Dollar Revolving Loans must be approved by the
Administrative Agent, the L/C Issuer and the Swingline Lender, unless the
Person that is the proposed assignee is itself a Lender, and, so long as no
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that the
Borrower’s approval shall not be required if the proposed assignee is a Lender,
an Affiliate of a Lender or an Approved Fund; (B) an Approved Currency
Revolving Commitment and Approved Currency Revolving Loans must be approved by
the Administrative Agent unless the Person that is the proposed assignee is
itself a Lender, and, so long as no Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that the Borrower’s approval shall not be required if
the proposed assignee is a Lender, an Affiliate of a Lender or an Approved Fund
and (C) the Term Loans must be approved by the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided
that no approval shall be required if the proposed assignee is a Lender, an
Affiliate of a Lender or an Approved Fund; and


 


(vi)          the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500 (unless
waived by the Administrative Agent in its sole discretion), and the Eligible
Assignee, if it shall not be a Lender, shall (A) deliver to the Administrative
Agent an Administrative Questionnaire and (B) deliver to the Borrower and
the Administrative Agent the forms required to be delivered pursuant to Section 3.01(e).


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Credit Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Credit Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Credit Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Credit Agreement, such Lender shall
cease 


 


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to be a party hereto) but shall continue to be entitled to the benefits
of Sections 3.01, 3.04, 3.05, and 11.04 with
respect to facts and circumstances occurring prior to the effective date of
such assignment.  Upon request, the Borrower
(at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of
rights or obligations under this Credit Agreement that does not comply with
this subsection shall be treated for purposes of this Credit Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


(c)           Register. 
The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations and the interest thereon
owing and paid to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  The entries in
the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Credit Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or substantive change to the Credit Documents is
pending, any Lender may request and receive from the Administrative Agent a
copy of the Register.


 


(d)           Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Credit Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender’s participations
in L/C Obligations and/or Swingline Loans) owing to it); provided that (i) such
Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Credit Agreement. 
Each Lender, acting solely for this purpose as a non-fiduciary agent of
the Borrower, shall maintain a register for the recordation of the names and
addresses of such Participants and the rights, interests or obligations of such
Participants in any Obligation, in any Commitment and in any right to receive
any principal, interest and other payments thereunder (the “Participant
Register”).  The entries in the
Participant Register shall be conclusive absent manifest error and such Lender
shall treat each person whose name is recorded in the Participant Register as
the owner of such participation for all purposes of this Credit Agreement
notwithstanding any notice to the contrary.


 


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in


 


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Section 11.01(a)(iv) or (v) or, to the extent the
Participant is affected thereby, Section 11.01(b)(i), (ii) or
(iii).  Subject to subsection (e) of
this Section, each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender, provided such Participant agrees to be subject
to Section 2.12 as though it were a Lender.


 


(e)           Limitation
upon Participant Rights.  A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent, not to be unreasonably withheld or delayed (it being agreed, without
limitation, that it will be reasonable for the Borrower to withhold consent if
giving consent would result in increased indemnification obligations at the
time the participation takes effect or would be reasonably certain to result in
increased indemnification obligations thereafter as a result of a Change in Law
announced prior to the time the participation takes effect), provided that the
Participant agrees to be subject to the provisions of Sections 3.06(a) and
11.13(a) as if it were a Lender. 
For the avoidance of doubt, a Participant entitled to benefits under Section 3.01,
3.04 or 3.05 shall be subject to all of the limitations and
requirements of such Sections as if it were a Lender (including, in the case of
Section 3.01, all of the limitations in the definition of Excluded
Taxes).


 


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


 


(g)           Electronic
Execution of Assignments.  The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided
for in any applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.


 


(h)           Special
Purpose Funding Vehicles.  Notwithstanding anything to
the contrary contained herein, any Lender (a “Granting Lender”) may
grant to a special purpose funding vehicle identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the
Borrower (an “SPC”) the option to provide all or any part of any Loan
that such Granting Lender would otherwise be obligated to make pursuant to this
Credit Agreement; provided that (i) nothing herein shall constitute
a commitment by any SPC to fund any Loan, and (ii) if a SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof or, 


 


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if it fails to do so, to make such payment to the Administrative Agent
as is required under Section 2.11(b)(i).  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Credit Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Credit Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Credit
Document, remain the lender of record hereunder.  The making of a Loan by a SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. 
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Credit Agreement) that, prior
to the date that is one (1) year and one (1) day after the payment in
full of all outstanding commercial paper or other senior debt of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof.  Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without
prior consent of the Borrower and the Administrative Agent and with the payment
of a processing fee in the amount of $2,500, assign all or any portion of its
right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC.  Each SPC shall be entitled to the benefits of
Section 3.01, 3.04 and 3.05 to the same extent as if
it were a Granting Lender and had acquired its interest by assignment pursuant
to Section 11.06(b).  A SPC
shall not be entitled to receive any greater payment under Sections 3.01,
3.04 or 3.05 than the applicable Granting Lender would have been
entitled to receive with respect to the interest granted to such SPC unless the
grant of the interest is made with the Borrower’s prior written consent, not to
be unreasonably withheld or delayed (it being agreed, without limitation, that
it will be reasonable for the Borrower to withhold consent if giving consent
would result in increased indemnification obligations at the time the grant to
the SPC takes effect or would be reasonably certain to result in increased
indemnification obligations thereafter as a result of a Change in Law announced
prior to the time the grant to the SPC takes effect), provided that the SPC
agrees to be subject to the provisions of Section 3.06(a) and 11.13(a) as
if it were a Granting Lender.  For the
avoidance of doubt, a SPC entitled to benefits under Section 3.01, 3.04
or 3.05 shall be subject to all of the limitations and requirements of
such Sections as if it were a Granting Lender (including, in the case of Section 3.01,
all of the limitations in the definition of Excluded Taxes).


 


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


 


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


 


11.07                 Treatment of
Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to
any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Credit Document or any action or proceeding
relating to this Credit Agreement or any other Credit Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Credit Agreement, (ii) any
actual or prospective counterparty (or advisors) to any swap, derivative
transaction relating to the Borrower and its obligations, (g) subject to
each such Person being informed of the confidential nature of the Information
and to their agreement to keep such Information confidential, to (i) an
investor or prospective investor in securities issued by an Approved Fund that
also agrees that Information shall be used solely for the purpose of evaluating
an investment in such securities issued by the Approved Fund, (ii)  a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in securities issued by an Approved Fund in connection with the
administration, servicing and reporting on the assets serving as collateral for
securities issued by an Approved Fund, or (iii)  a nationally recognized
rating agency that requires access to information regarding the Credit Parties,
the Loans and Credit Documents in connection with ratings issued in respect of
securities issued by an Approved Fund, (h) with the consent of the
Borrower or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, 


 


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the L/C Issuer or any of their respective Affiliates
on a nonconfidential basis from a source other than the Borrower.


 


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


 


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


 


11.08                 Right of
Setoff.


 


If an
Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Credit Party against any and all of the obligations of such
Borrower or such Credit Party now or hereafter existing under this Credit
Agreement or any other Credit Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made
any demand under this Credit Agreement or any other Credit Document and
although such obligations of such Borrower or such Credit Party may be
contingent or unmatured or are owed to a branch or office of such Lender or the
L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness.  The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are
in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


11.09                 Interest Rate
Limitation.


 


Notwithstanding
anything to the contrary contained in any Credit Document, the interest paid or
agreed to be paid under the Credit Documents shall not exceed the maximum rate
of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the 


 


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excess interest shall be applied to the principal of
the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread
in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.


 


11.10                 Counterparts;
Integration; Effectiveness.


 


This
Credit Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Credit Agreement and the other Credit
Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof, other
than the conditions precedent set forth in the Commitment Letter.  Except as provided in Section 5.01,
this Credit Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. 
Delivery of an executed counterpart of a signature page of this
Credit Agreement by telecopy or other electronic imaging means shall be as
effective as delivery of a manually executed counterpart of this Credit Agreement.


 


11.11                 Survival of
Representations and Warranties.


 


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


 


11.12                 Severability.


 


If any
provision of this Credit Agreement or the other Credit Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Credit Agreement and the
other Credit Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions.  The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


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11.13                 Replacement of
Lenders.


 


(a)           If
any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender or if any other circumstance exists
hereunder that gives the Borrower the right to replace a Lender as a party
hereto, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.06), all of its
interests, rights and obligations under this Credit Agreement and the related
Credit Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


(i)            the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 11.06(b);


 


(ii)           such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and L/C
Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Credit Documents (including any amounts
under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts);


 


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


 


(iv)          such assignment does not conflict with
applicable Laws; and


 


(v)           such assignment is recorded in the
Register.


 


A
Lender that has assigned its interests, rights and obligations under this
Credit Agreement and the related Credit Documents pursuant to this Section 11.13(a) shall
continue to be entitled to the benefits of Sections 3.01, 3.04
and 3.06 with respect to the periods during which such Person was a
Lender.


 


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


 


(b)           If,
in connection with any proposed amendment, change, waiver, discharge or
termination of any of the provisions of this Credit Agreement or any other Credit
Document as contemplated by Section 11.01, the consent of the
Required Lenders (or Required Approved Currency Revolving Lenders, Required
Dollar Revolving Lenders or Required Term Lenders, as the case may be) is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained (any such Lender whose consent is not obtained as described
in this clause (b) being referred to as a “Non-Consenting Lender”),
then, at the Borrower’s request, any 


 


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Eligible Assignee reasonably acceptable to the Administrative Agent
shall have the right to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s request,
sell and assign to such Eligible Assignee, all of the Commitments and Loans of
such Non-Consenting Lender for an amount equal to the principal balance of all
Loans held by the Non-Consenting Lender and all accrued and unpaid interest and
fees with respect thereto and all other amounts payable to it hereunder through
the date of sale and payment by the Borrower to the Administrative Agent of the
assignment fee under Section 11.06(b); provided, however,
that such purchase and sale shall not be effective until (x) the Administrative
Agent shall have received from such Eligible Assignee an agreement in form and
substance satisfactory to the Administrative Agent and the Borrower whereby
such Eligible Assignee shall agree to be bound by the terms hereof and (y) such
Non-Consenting Lender shall have received payments of all Loans held by it and
all accrued and unpaid interest and fees with respect thereto and all other
amounts payable to it hereunder through the date of the sale.  Each Lender agrees that, if it becomes a
Non-Consenting Lender, it shall execute and deliver to the Administrative Agent
an Assignment and Assumption to evidence such sale and purchase and shall
deliver to the Administrative Agent any Note (if the assigning Lender’s Loans
are evidenced by a Note) subject to such Assignment and Assumption; provided,
however, that the failure of any Non-Consenting Lender to execute an
Assignment and Assumption shall not render such sale and purchase (and the corresponding
assignment) invalid.


 


11.14                 Governing Law;
Jurisdiction; Etc.


 


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


 


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


 


147

















 


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


 


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.  NOTHING IN THIS CREDIT AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


11.15                 Waiver of Jury
Trial.


 


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


 


11.16                 USA PATRIOT
Act Notice.


 


Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.


 


11.17                 Designation as
Senior Debt.


 


All
Obligations shall be “Designated Senior Indebtedness” (or such similar defined
term) for purposes of all documentation governing Subordinated Debt.


 


148

















 


11.18                 No Advisory or
Fiduciary Responsibility.


 


In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Credit Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Credit Agreement provided by the Agents and the Lead Arrangers are arm’s-length commercial transactions
between the Borrower and its
Affiliates, on the one hand, and the Agents and the other Lead Arrangers, on the other hand, (B) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate, and (C) the Borrower is capable
of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Credit Documents; (ii) (A) each
Agent and Lead Arranger is and
has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person
and (B) no Agent or Lead Arranger
has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Credit Documents; and (iii) the Agents and the Lead Arrangers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ
from those of the Borrower  and its Affiliates, and no Agent or any Lead Arranger has any
obligation to disclose any of such interests to the Borrower or its  Affiliates.  To the
fullest extent permitted by law, the
Borrower hereby waives and releases any claims that it may have against any
Agent or Lead Arranger with respect
to any breach or alleged breach of agency or fiduciary duty in connection with
any aspect of any transaction contemplated hereby.


 


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INTENTIONALLY LEFT BLANK]


 


149

















 


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


 


BORROWER:


 


 


	
   

  	
  INTERVAL ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory R.
  Blatt

  
	
   

  	
   

  	
  Name: Gregory R.
  Blatt

  
	
   

  	
   

  	
  Title:   Vice
  President and

  
	
   

  	
   

  	
  Assistant
  Secretary

  



 


[Interval Credit Agreement Signature Page]


 

















 


ADMINISTRATIVE
AGENT:


 


 


	
   

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION, as
  Administrative Agent and Collateral

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc A.
  Birenbaum

  
	
   

  	
   

  	
  Name: Marc A.
  Birenbaum

  
	
   

  	
   

  	
  Title:   Director

  



 


[Interval Credit Agreement Signature Page]


 

















 


LENDERS:


 


 


	
   

  	
  WACHOVIA BANK, NATIONAL

  
	
   

  	
  ASSOCIATION as
  L/C Issuer, Swingline Lender

  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc A. Birenbaum

  
	
   

  	
   

  	
  Name: Marc A. Birenbaum

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay D. Marquis

  
	
   

  	
   

  	
  Name: Jay D. Marquis

  
	
   

  	
   

  	
  Title:   Vice
  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brenda s.
  Insull

  
	
   

  	
   

  	
  Name: Brenda s.
  Insull

  
	
   

  	
   

  	
  Title:   Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Barton

  
	
   

  	
   

  	
  Name: David
  Barton

  
	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randolph Cates

  
	
   

  	
   

  	
  Name: Randolph Cates

  
	
   

  	
   

  	
  Title:   Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH BANK USA,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  
	
   

  	
   

  	
  Name: Louis
  Alder

  
	
   

  	
   

  	
  Title:   First
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Melissa
  James

  
	
   

  	
   

  	
  Name: Melissa James

  
	
   

  	
   

  	
  Title:   Authorized
  Signatory

  



 


[Interval Credit Agreement Signature Page]


 

















 


	
   

  	
  STATE BANK OF INDIA, Los
  Angeles Agency,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ K.S.S. Naidu

  
	
   

  	
   

  	
  Name: K.S.S.
  Naidu

  
	
   

  	
   

  	
  Title:   Vice
  President (Credit & Operations)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUMITOMO MITSUI BANKING
  CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leo E. Pagarigan

  
	
   

  	
   

  	
  Name: Leo E. Pagarigan

  
	
   

  	
   

  	
  Title:   General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO FOOTHILL, LLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth Tucci

  
	
   

  	
   

  	
  Name: Elizabeth
  Tucci

  
	
   

  	
   

  	
  Title:   Vice
  President