EX-10.2






Exhibit 10.2




WAIVER AND AMENDMENT AGREEMENT NO. 1




to that certain




CREDIT AGREEMENT




          This WAIVER AND AMENDMENT AGREEMENT NO. 1 TO THAT CERTAIN CREDIT AGREEMENT (this
“Amendment”) dated as of February 5, 2009 and effective as of December 31, 2008, among (a)
HARRIS INTERACTIVE INC. (the “Borrower”), (b) JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
administrative agent (the “Administrative Agent”) for itself and the other lenders
(the “Lenders”) who are or may become party to the Credit Agreement dated as of September
21, 2007 (as amended, restated, supplemented or otherwise modified, and in effect from time to
time, the “Credit Agreement”) among the Borrower, the Administrative Agent and the
Lenders; and (c) the Lenders signatory hereto.



          WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Credit
Agreement, pursuant to which the Lenders, upon certain terms and conditions, have agreed to make
Loans to, and the Issuing Bank, upon certain terms and conditions, has agreed to issue Letters of
Credit for the benefit of, the Borrower;



          WHEREAS, Events of Default have occurred and continue as a result of the Borrower’s failure to
comply with the covenants contained in Section 5.2(d) of the Credit Agreement (as to matters
disclosed to the Administrative Agent and the Lenders), Section 6.1(c) of the Credit Agreement (as
a result of intercomapny loans made to Harris Decima Inc. and to Marketshare Limited) and Section
6.9(a) of the Credit Agreement for the period ended December 31, 2008 and Section 6.9(b) of the
Credit Agreement for the period ended December 31, 2008 (collectively, the “Specified Events of
Default”);



          WHEREAS, the Borrower has requested, among other things, that the Lenders and Administrative
Agent (a) waive the Specified Events of Default, and (b) amend the Credit Agreement as provided
more fully herein below; and



          WHEREAS, the Lenders and the Administrative Agent are willing (a) to waive the Specified
Events of Default, subject to the terms, conditions and other provisions hereof, and (b) to amend
certain provisions of the Credit Agreement as more fully provided herein;



          NOW, THEREFORE, in consideration of the mutual agreements contained in the Credit Agreement,
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



          Section 1. Defined Terms. Capitalized terms used but not defined herein shall
have the same meanings herein as in the Credit Agreement.



          Section 2. Waiver. Subject to the terms and conditions set forth herein, the Lenders and the
Administrative Agent hereby agree to waive the Specified Events of



 









 





-2-



Default
during (but only during) the period (the “Waiver Period”) ending on the earliest to occur of (a) March 6, 2009 at 2
p.m. Eastern Time, (b) the occurrence after the date hereof of any Default or Event of Default
other than the Specified Events of Default, and (c) the occurrence of any Material Adverse Effect
in the business, assets, financial condition or prospects of the Borrower or Loan Parties other
than in respect of the Specified Events of Default and otherwise disclosed in the Harris Financial
Information (as hereinafter defined) delivered to the Administrative Agent on January 29, 2009 and
to the Lenders on January 30, 2009. Such limited waiver shall automatically, and without action,
notice, demand or any other occurrence, expire on and as of the end of the Waiver Period. Upon the
expiration or termination of the Waiver Period, and from and after such time, (i) the Lenders and
the Administrative Agent shall retain all of the rights and remedies relating to the Specified
Events of Default and any other Default or Event of Default, (ii) the Specified Events of Default
shall be reinstated and shall be in full force and effect for all periods including periods after
the Waiver Period, and (iii) any obligation of the Lenders under the Credit Agreement shall be
subject to the terms and conditions set forth in the Credit Agreement. As used herein, “Harris
Financial Information” means, collectively, (i) Harris Interactive Inc. Draft Consolidated Balance
Sheets for the six months ending December 31, 2008, (ii) Harris Interactive Inc. Draft Consolidated
Statement of Operations for the six months ending December 31, 2008, (iii) Harris Interactive Inc.
Draft Consolidated Statement of Cash Flows for the six months ending December 31, 2008, (iv) Harris
Interactive Business Plan PowerPoint presentation dated January 29, 2009, (v) Harris Interactive
Summary of Business Plan (July 2007 through June, 2011), (vi) Harris Financial Forecast Yearly and
Quarterly Financials 01-29-09, and (vii) Harris Interactive Consolidated Monthly Income Statement
01-29-09, each of items (i) through (vii) inclusive having been delivered to the Administrative
Agent on January 29, 2009 and the Lenders on January 30, 2009. The parties intend to work in good
faith to further amend the Credit Agreement, including the financial covenants therein, on mutually
acceptable terms before the expiration of the Waiver Period, but no party shall be under any
obligation to enter into any such amendment and any such amendment shall be subject to the
agreement of each of the parties acting in each such Person’s sole discretion.




          Section 3. Amendments to the Credit Agreement, Schedules
and Exhibits.



          (a) Amendments to the Credit Agreement. The Credit Agreement is hereby amended in its
entirety and replaced with the document attached hereto as Annex I.



          (b) Amendments to the Schedules to the Credit Agreement. Schedule 2.1 and Schedule
3.11 to the Credit Agreement is hereby amended in their entirety and replaced with the Schedule 2.1
and Schedule 3.11 attached hereto as Annex II.



          (c) Amendments to the Exhibits to the Credit Agreement.



               (i) Exhibit A to the Credit Agreement is hereby deleted and replaced in its entirety with
Exhibit A attached hereto as Annex III.



 









 





-3-




               (ii) Exhibit C-3 to the Credit Agreement is hereby deleted and replaced in its entirety with
Exhibit C-3 attached hereto as Annex IV.



               (iii) Exhibit E to the Credit Agreement is hereby deleted and replaced in its entirety with
Exhibit E attached hereto as Annex V.



               (iv) Exhibit G to the Credit Agreement is hereby deleted and replaced in its entirety with
Exhibit G attached hereto as Annex VI.



          Section 4. Affirmation and Acknowledgment of the
Borrower. The Borrower hereby ratifies and confirms all of its Obligations to the Lenders,
Issuing Bank and the Administrative Agent, including, without limitation, the Loans, and the
Borrower hereby affirms its absolute and unconditional promise to pay to the Lenders, the Issuing
Bank and the Administrative Agent the Loans and all other amounts due under the Credit Agreement as
amended hereby. The Borrower hereby confirms that the Obligations are secured pursuant to the
Collateral Documents and pursuant to all other instruments and documents executed and delivered by
the Borrower as security for the Obligations.



          Section 5. Joinder to Guaranty Agreement. GSBC Ohio Corporation, an Ohio corporation,
is hereby added as a party to the Guaranty Agreement and shall be included within the term
“Guarantor” as used therein. GSBC Ohio Corporation hereby agrees to be bound by all of the terms
and conditions of the Guaranty Agreement, in all respects as if GSBC Ohio Corporation was an
original signatory thereto, and as a result thereof, absolutely, unconditionally and irrevocably,
jointly and severally, guarantees to the Administrative Agent and the Lenders the full and punctual
payment when due (whether at stated maturity, by required pre-payment, by acceleration or
otherwise), as well as the performance, of all Obligations including all such which would become
due but for the operation of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code
and the operation of §§502(b) and 506(b) of the Federal Bankruptcy Code and accruing after the
commencement of a proceeding under any other insolvency or similar laws of any jurisdiction at the
rate or rates provided in the Loan Documents.



          Section 6. Representations and Warranties. Each Loan Party hereby
represents and warrants to the Lenders and Administrative Agent as follows:



          (a) The execution and delivery by such Loan Party of this Amendment and the Loan Documents to
which it is a party, and the performance by such Loan Party of its obligations and agreements under
this Amendment, the Credit Agreement as amended hereby, and the other Loan Documents, are within
the corporate authority of such Loan Party, have been duly authorized by all necessary corporate
proceedings on behalf of such Loan Party, and do not and will not contravene any provision of law, statute, rule or
regulation to which such Loan Party is subject or any of such Loan Party’s charter, other
incorporation papers, by-laws or any stock provision or any amendment thereof or of any agreement
or other instrument binding upon such Loan Party.



 









 





-4-




          (b) This Amendment, the Credit Agreement as amended hereby, and the other Loan Documents
constitute legal, valid and binding obligations of such Loan Party, enforceable in accordance with
their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of creditors’ rights.



          (c) No approval or consent of, or filing with, any governmental agency or authority is
required to make valid and legally binding the execution, delivery or performance by such Loan
Party of this Amendment, the Credit Agreement as amended hereby, or the other Loan Documents other
than for the UCC filings and filings with the Patent and Trademark Office for the perfection of the
Administrative Agent’s Liens contemplated by the Collateral Documents.



          (d) The representations and warranties contained in Article III of the Credit Agreement are
true and correct at and as of the date made and as of the date hereof, except to the extent (i) of
changes resulting from transactions contemplated or permitted by this Amendment, the Credit
Agreement and the other Loan Documents, (ii) relating to the representation contained in Section
3.4(b) of the Credit Agreement, and (iii) relating to representations that expressly relate to an
earlier date.



          (e) Such Loan Party has performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by it prior to or at the time hereof,
and as of the date hereof, after giving effect to the provisions hereof, there exists no Event of
Default or Default.



          Section 7. Release. In order to induce the Administrative Agent and the Lenders to
enter into this Amendment, each Loan Party acknowledges and agrees that: (a) such Loan Party does
not have any claim or cause of action against the Administrative Agent, the Issuing Bank or any
Lender (or any of its respective directors, officers, employees or agents); (b) such Loan Party
does not have any offset right, counterclaim or defense of any kind against any of its respective
obligations, indebtedness or liabilities to the Administrative Agent, the Issuing Bank or any
Lender; and (c) the Administrative Agent, the Issuing Bank and each Lender have heretofore properly
performed and satisfied in a timely manner all of its obligations to the Loan Parties. Each Loan
Party wishes to eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters would impair or otherwise adversely affect the Administrative Agent’s, the
Issuing Bank’s or any Lender’s rights, interests, contracts, collateral security or remedies.
Therefore, each Loan Party unconditionally releases, waives and forever discharges (i) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of the Administrative Agent,
the Issuing Bank or any Lender to such Loan Party, except the obligations to be performed by any Administrative Agent, the Issuing Bank or any Lender on or after the date hereof as expressly
stated in this Amendment, the Credit Agreement and the other Loan Documents, and (ii) all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any), whether arising at
law or in equity, whether known or unknown, which such Loan Party might otherwise have against the
Administrative Agent, the Issuing Bank, any Lender or any of its directors, officers, employees or
agents, in either



 









 





-5-



case (i) or (ii), on account of any past or presently existing condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind.




          Section 8. Conditions to Effectiveness. This Amendment shall become
effective subject to:



          (a) the receipt by the Administrative Agent (or its counsel) from each of the Borrower, the
Administrative Agent and the Required Lenders, of either (i) an original counterpart of this
Amendment signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed signature page of this
Amendment) that such party has signed a counterpart of this Amendment;



          (b) the receipt by the Administrative Agent (or its counsel) of either (i) an original
counterpart of the Pledge Agreement signed on behalf of the parties signatory thereto or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy transmission
of a signed signature page of the Pledge Agreement) that such party has signed a counterpart of the
Pledge Agreement. The Administrative Agent shall have received all certificates representing such
Equity Interests of all domestic subsidiaries pledged under the Pledge Agreement, accompanied by
instruments of transfer and undated stock powers endorsed in blank, each in form and substance
satisfactory to the Administrative Agent; and the Borrower shall have taken all steps necessary
under applicable United States law to perfect the Lien of the Administrative Agent in such Equity
Interests;



          (c) the receipt by the Administrative Agent of either (i) an original counterpart of the
Security Agreement signed on behalf of each of the grantors party thereto or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of the Security Agreement) that such party has signed a counterpart of the Security
Agreement;



          (d) the receipt by the Administrative Agent of either (i) an original counterpart of the
Guaranty Agreement signed on behalf of GSBC Ohio Corporation in the form attached hereto as
Annex VII or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of the Guaranty Agreement) that such party
has signed a counterpart of the Guaranty Agreement;



          (e) the receipt by the Administrative Agent of either (i) an original counterpart of the
Patent Security Agreement signed on behalf of each of the Loan Parties party thereto or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of the Patent Security Agreement) that such party has
signed a counterpart of the Patent Security Agreement;



          (f) the receipt by the Administrative Agent of either (i) an original counterpart of the
Trademark Security Agreement signed on behalf of each of the Loan Parties party thereto or (ii)
written evidence satisfactory to the Administrative Agent (which may include



 









 





-6-



telecopy transmission of a signed signature page of the Trademark Security Agreement) that such party has signed a
counterpart of the Trademark Security Agreement;




          (g) the receipt by the Administrative Agent of either (i) an original counterpart of the
Perfection Certificates signed on behalf of each of the Loan Parties party thereto or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a
signed signature page of the Perfection Certificates) that such party has signed a counterpart of
the Perfection Certificates;



          (h) the receipt by the Administrative Agent of the results of a search of the UCC filings (or
equivalent filings), in addition to tax Lien, judgment Lien, bankruptcy and litigation searches
made with respect to each Loan Party, together with copies of the financing statements and other
filings (or similar documents) disclosed by such searches, and accompanied by evidence satisfactory
to the Administrative Agent that the Liens indicated in any such financing statement and other
filings (or similar document) are Permitted Encumbrances or have been released or will be released
substantially simultaneously with execution of this Amendment;



          (i) the receipt by the Administrative Agent of evidence, in form and substance satisfactory to
the Administrative Agent, that appropriate UCC (or equivalent) financing statements have been duly
filed in such office or offices as may be necessary or, in the opinion of Administrative Agent,
desirable, to perfect the Administrative Agent’s Liens in and to the Collateral;



          (j) the receipt by the Administrative Agent of evidence, in form and substance satisfactory to
the Administrative Agent, of the submission for filing of the Trademark Security Agreement and
Patent Security Agreement in the appropriate governmental office;



          (k) the receipt by the Administrative Agent of a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Amendment Agreement No. 1 Effective Date) of
Harris Beach PLLC, counsel for the Borrower, covering such matters relating to the Borrower, the
Loan Parties, this Amendment, the joinder of GSBC Ohio Corporation to the Guaranty Agreement and
the Collateral Documents as the Administrative Agent shall reasonably request;



          (l) the receipt by the Administrative Agent of such documents, resolutions and certificates as
the Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties, the authorization of the entering into and
execution of this Amendment and the other Loan Documents, the granting of a security interest to
the Administrative Agent, on behalf of the Lenders, in the Collateral,
the pledging of the Equity Interests by the parties signatory to the Pledge Agreement, and any
other legal matters relating to the Loan Parties, this Amendment or the other Loan Documents, all
in form and substance satisfactory to the Administrative Agent and its counsel;



          (m) the receipt by the Administrative Agent of all fees due and payable to the Administrative
Agent and the Lenders in immediately available funds;



 









 





-7-




          (n) the payment of all reasonable legal fees and disbursements for which invoices have been
presented which have been incurred or sustained by the Administrative Agent in connection with this
Amendment and the Credit Agreement, the Loan Documents and any other related documents executed
and/or delivered in connection therewith; and



          (o) the delivery to the Administrative Agent of such other items, documents, agreements, items
or actions as the Administrative Agent may reasonably request.



          Section 9. Miscellaneous Provisions.



          (a) Except as otherwise expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in full force and
effect, and that this Amendment and the Credit Agreement shall be read and construed as one
instrument.



          (b) This Amendment shall be construed in accordance with and governed by the internal law of
the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations laws
of the State of New York).



          (c) This Amendment shall constitute a Loan Document under the Credit Agreement and all
obligations included in this Amendment (including, without limitation, all obligations for the
payment of principal, interest, fees and other amounts and expenses) shall constitute Obligations
under the Credit Agreement and be secured by the Collateral Documents securing the Obligations.



          (d) Any failure by the Borrower or the Loan Parties to comply with any of the terms and
conditions of this Amendment shall constitute an immediate Event of Default.



          (e) This Amendment may be executed in any number of counterparts, each of which shall
constitute an original, but all such counterparts shall together constitute but one contract. In
making proof of this Amendment it shall not be necessary to produce or account for more than one
counterpart signed by each party hereto by and against which enforcement hereof is sought.
Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other
electronic method of transmission shall be effective as delivery of a manually executed counterpart
of this Amendment.



          (f) The Borrower hereby agrees to pay to the Administrative Agent, on demand by the
Administrative Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by the
Administrative Agent in connection with the preparation of this Amendment and any documentation
executed in connection with this Amendment (including reasonable legal fees).



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 









 





          IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.



	 	 	 	 	 
	 	HARRIS INTERACTIVE INC.

 	 
	 	By:  	/s/ Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 








 









 











	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL
 ASSOCIATION, as
Administrative Agent

 	 
	 	By:  	/s/ Thomas C. Strasenburgh
 	 
	 	 	Name:  	Thomas C. Strasenburgh 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL 
ASSOCIATION, as Lender
 	 

	 	 	 	 	 
	 	By:  	/s/ Thomas C. Strasenburgh
 	 
	 	 	Name:  	Thomas C. Strasenburgh 	 
	 	 	Title:  	Vice President 	 
	 



 









 






	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST 
COMPANY, as Lender
 	 
	 	 	 	 	 
	 	By:  	/s/ Brett Rawlings
 	 
	 	Name:  	Brett Rawlings 	 
	 	Title:  	Assistant Vice President 	 
	 



 









 






	 	 	 	 	 
	 	NATIONAL CITY BANK, as Lender

 	 
	 	By:  	/s/  John P. Wojcik
 	 
	 	Name:  	John P. Wojcik 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL  
ASSOCIATION, as Lender
 	 
	 	 	 	 	 
	 	By:  	/s/ Joseph M. Koenig
 	 
	 	Name:  	Joseph M. Koenig 	 
	 	Title:  	Vice President 	 
	 








 









 











Loan Parties’ Acknowledgement




          Each of the undersigned Loan Parties hereby (a) acknowledges and consents to the foregoing
Amendment and the Borrower’s execution thereof; (b) joins the foregoing Amendment for the sole
purpose of consenting to and being bound by the provisions of Sections 6 and 7 thereof; (c)
ratifies and confirms all of their respective obligations and liabilities under the Loan Documents
to which any of them is a party and ratifies and confirms that such obligations and liabilities
extend to and continue in effect with respect to, and continue to guarantee and secure, as
applicable, the Obligations of each other Loan Party under the Loan Documents; (d) acknowledges and
confirms that the liens and security interests granted pursuant to the Loan Documents are valid and
perfected first priority liens and security interests (subject only to Permitted Encumbrances, the
filing of UCC financing statements by the Administrative Agent and approved by the Administrative
Agent and the Loan Parties for filing in applicable jurisdictions, and the filing of the Trademark
Security Agreement and Patent Security Agreement by the Administrative Agent) that secure all of
the Obligations on and after the date hereof; and (e) acknowledges, affirms and agrees that, as of
the date hereof, such Loan Party does not have any defense, claim, cause of action, counterclaim,
offset or right of recoupment of any kind or nature against any of their respective obligations,
indebtedness or liabilities to the Administrative Agent, the Issuing Bank or any Lender.



 









 





	 	 	 	 	 
	 	Loan Parties:





HARRIS INTERACTIVE INTERNATIONAL 
    INC.

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	WIRTHLIN WORLDWIDE, LLC

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	THE WIRTHLIN GROUP INTERNATIONAL, 
    L.L.C.

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	LOUIS HARRIS & ASSOCIATES, INC.

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE ASIA, LLC

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	GSBC OHIO CORPORATION

 	 
	 	By:  	/s/  Deborah Rieger-Paganis
 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 




 









 








ANNEX I




Annex I



 







CREDIT AGREEMENT




dated as of September 21, 2007,




and amended as of December 31, 2008,




among




HARRIS INTERACTIVE INC.,

as Borrower




THE LENDERS PARTY HERETO




and




JPMORGAN CHASE BANK,




NATIONAL ASSOCIATION,




as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




MANUFACTURERS AND TRADERS TRUST COMPANY,

as Syndication Agent




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. Definitions
	 	 	1	 
	Section 1.1. Defined Terms
	 	 	1	 
	Section 1.2. Classification of Loans and Borrowings
	 	 	20	 
	Section 1.3. Terms Generally
	 	 	20	 
	Section 1.4. Accounting Terms; GAAP
	 	 	20	 
	ARTICLE II. The Credits
	 	 	21	 
	Section 2.1. Loans
	 	 	21	 
	Section 2.2. Loans and Borrowings
	 	 	21	 
	Section 2.3. Requests for Borrowings
	 	 	22	 
	Section 2.4. Intentionally Omitted
	 	 	23	 
	Section 2.5. Letters of Credit
	 	 	23	 
	Section 2.6. Funding of Borrowings
	 	 	27	 
	Section 2.7. Interest Elections
	 	 	28	 
	Section 2.8. Termination and Reduction of Commitments
	 	 	29	 
	Section 2.9. Evidence of Debt
	 	 	29	 
	Section 2.10. Prepayment and Repayments of Loans
	 	 	30	 
	Section 2.11. Fees
	 	 	32	 
	Section 2.12. Interest
	 	 	33	 
	Section 2.13. Alternate Rate of Interest
	 	 	34	 
	Section 2.14. Increased Costs
	 	 	34	 
	Section 2.15. Break Funding Payments
	 	 	35	 
	Section 2.16. Taxes
	 	 	36	 
	Section 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs
	 	 	37	 
	Section 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	39	 
	ARTICLE III. Representations and Warranties
	 	 	40	 
	Section 3.1. Organization; Powers
	 	 	40	 
	Section 3.2. Authorization; Enforceability
	 	 	40	 
	Section 3.3. Governmental Approvals; No Conflicts
	 	 	40	 
	Section 3.4. Financial Condition; No Material Adverse Change
	 	 	40	 
	Section 3.5. Properties; Liens
	 	 	41	 
	Section 3.6. Litigation and Environmental Matters
	 	 	41	 
	Section 3.7. Compliance with Laws and Agreements
	 	 	41	 
	Section 3.8. Investment and Holding Company Status
	 	 	42	 
	Section 3.9. Taxes
	 	 	42	 
	Section 3.10. ERISA
	 	 	42	 
	Section 3.11. Subsidiaries
	 	 	42	 
	Section 3.12. Federal Regulations
	 	 	42	 
	Section 3.13. Specially Designated Nationals or Blocked
Persons List

	 	 	42	 
	
Section 3.14. Collateral Documents
	 	 	42	 
	Section 3.15. Disclosure
	 	 	43	 






i









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE IV. Conditions
	 	 	43	 
	Section 4.1. Effective Date
	 	 	43	 
	Section 4.2. Each Credit Event
	 	 	46	 
	ARTICLE V. Affirmative Covenants
	 	 	46	 
	Section 5.1. Financial Statements; Ratings Change and
Other Information
	 	 	46	 
	Section 5.2. Notices of Material Events
	 	 	48	 
	Section 5.3. Existence; Conduct of Business
	 	 	49	 
	Section 5.4. Payment of Obligations
	 	 	49	 
	Section 5.5. Maintenance of Properties; Insurance
	 	 	49	 
	Section 5.6. Books and Records; Inspection Rights
	 	 	49	 
	Section 5.7. Compliance with Laws
	 	 	49	 
	Section 5.8. Use of Proceeds and Letters of Credit
	 	 	50	 
	Section 5.9. Additional Subsidiaries
	 	 	50	 
	Section 5.10. Amendment Agreement No. 1
Post-Closing Obligations
	 	 	51	 
	ARTICLE VI. Negative CovenantS
	 	 	53	 
	Section 6.1. Indebtedness
	 	 	53	 
	Section 6.2. Liens
	 	 	54	 
	Section 6.3. Fundamental Changes; Line of Business
	 	 	54	 
	Section 6.4. Investments, Loans, Advances, Guarantees
and Acquisitions
	 	 	55	 
	Section 6.5. Swap Agreements
	 	 	55	 
	Section 6.6. Restricted Payments
	 	 	56	 
	Section 6.7. Transactions with Affiliates
	 	 	56	 
	Section 6.8. Restrictive Agreements
	 	 	56	 
	Section 6.9. Financial Covenants
	 	 	57	 
	Section 6.10. Capital Expenditures
	 	 	57	 
	Section 6.11. Accounting Changes
	 	 	57	 
	ARTICLE VII. Events of Default
	 	 	57	 
	Section 7.1. Events of Default
	 	 	57	 
	Section 7.2. Application of Payments
	 	 	60	 
	ARTICLE VIII. The Administrative Agent; ETC
	 	 	61	 
	ARTICLE IX. Miscellaneous
	 	 	63	 
	Section 9.1. Notices
	 	 	63	 
	Section 9.2. Waivers; Amendments
	 	 	64	 
	Section 9.3. Expenses; Indemnity; Damage Waiver
	 	 	65	 
	Section 9.4. Successors and Assigns
	 	 	66	 
	Section 9.5. Survival
	 	 	70	 
	Section 9.6. Counterparts; Integration; Effectiveness
	 	 	70	 
	Section 9.7. Severability
	 	 	70	 
	Section 9.8. Right of Setoff
	 	 	71	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 9.9. Governing Law; Jurisdiction; Consent to
Service of Process
	 	 	71	 
	Section 9.10. WAIVER OF JURY TRIAL
	 	 	71	 
	Section 9.11. Headings
	 	 	72	 
	Section 9.12. Confidentiality
	 	 	72	 
	Section 9.13. Interest Rate Limitation
	 	 	73	 
	Section 9.14. USA PATRIOT Act
	 	 	73	 






iii









 






SCHEDULES:

Schedule 2.1 — Commitments

Schedule 3.11 — Subsidiaries

Schedule 6.1 — Existing Indebtedness

Schedule 6.2 — Existing Liens




EXHIBITS:

Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Opinion of Borrower’s Counsel

Exhibit C-1 — Form of Revolving Credit Note

Exhibit C-2 — Form of Term A Note

Exhibit C-3 — Form of Term B Note

Exhibit D — Form of Borrowing Request

Exhibit E — Form of Compliance Certificate

Exhibit F — Form of Master Guaranty

Exhibit G — Form of Master Securities Pledge Agreement

Exhibit H — Form of Master Security Agreement




 









 





     CREDIT AGREEMENT dated as of September 21, 2007, and amended as of December 31, 2008, among
HARRIS INTERACTIVE INC., the LENDERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent.



     The parties hereto agree as follows:



ARTICLE I.

DEFINITIONS





     SECTION 1.1. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



     “Administrative Agent” means JPMorgan Chase Bank, in its capacity as administrative
agent for the Lenders hereunder.



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



     “Affiliate” means, with respect to a specified 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.



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or
if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that,
for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing
on the Reuters Screen LIBOR01 Page1 (or on any successor or substitute page) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall
be effective from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.



     “Amendment Agreement No. 1” means the Waiver and Amendment Agreement No. 1, dated as
of February 5, 2009 and effective as of December 31, 2008, among Borrower, the Administrative Agent
and the Required Lenders.



     “Amendment Agreement No. 1 Effective Date” means December 31, 2008.



     “Applicable Percentage” means (a) in respect of the Term A Facility, with respect to
any Term A Lender at any time, the percentage of the Term A Facility represented by (i) on or prior to the Effective Date, such Term A Lender’s Term A Commitment at such time and (ii)



 









 







thereafter, the principal amount of such Term A Lender’s Term A Loans at such time, (b) in respect
of the Term B Facility, with respect to any Term B Lender at any time, the percentage of the Term B
Facility represented by the principal amount of such Term B Lender’s Term B Loans at such time and
(c) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any
time, the percentage of the Revolving Credit Facility represented by such Revolving Credit Lender’s
Revolving Credit Commitment at such time. If the commitment of each Lender to make Loans and the
obligation of the Issuing Bank to issue, extend or renew Letters of Credit have been terminated
pursuant to Article VII, or if the Commitments have expired, then the Applicable Percentage
of each Lender in respect of the applicable Facility shall be determined based on the Applicable
Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of each Lender in respect of each
Facility is set forth opposite the name of such Lender on Schedule 2.1 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Approved Auditor” means PriceWaterhouse Coopers LLP or any other independent public
accountants of recognized national standing and reasonably acceptable to the Administrative Agent.



     “Approved Fund” has the meaning assigned to such term in Section 9.4.



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



     “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



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



     “Borrower” means Harris Interactive Inc., a Delaware corporation.



     “Borrower Materials” has the meaning set forth in Section 5.1.



     “Borrowing” means a Revolving Credit Borrowing, a Term A Borrowing or a Term B
Borrowing.



     “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.3.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase of any fixed or capital asset (excluding normal replacements
and maintenance which are properly charged to current operations).



2









 





     “Capitalized Leases” means all leases or other arrangement conveying the right to use
real or personal property, or a combination thereof, that have been or should be, in accordance
with GAAP, recorded as capital leases.



     “Capitalized Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any Capitalized Lease.



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by
any Person or group.



     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term A Loans or Term B Loans.



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



     “Collateral” means , collectively, (i) “Collateral” (as defined in each Security
Agreement), (ii) “Securities Collateral” and (iii) all property in which a Lien is created (or
purported to be created) pursuant to the Loan Documents.



     “Collateral Documents” means, collectively, each Pledge Agreement, each Security
Agreement, each Copyright Memorandum, each Patent Security Agreement, each Trademark Security
Agreement, each Perfection Certificate and each other agreement, instrument or document that
creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the
Lenders and the Administrative Agent.



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



     “Consolidated Adjusted EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in calculating such Consolidated Net Income and without duplication: (i)
Consolidated Interest Charges, (ii) the provision for Federal, state, local and foreign income
taxes payable, (iii) depreciation and amortization expense, (iv) non-cash equity compensation
expense accounted for under SFAS No. 123(R), and (v) other non-recurring



3









 







expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in
each case of or by the Borrower and its Subsidiaries for such Measurement Period), and minus (b)
the following to the extent included in calculating such Consolidated Net Income: (i) Federal,
state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net
Income (in each case of or by the Borrower and its Subsidiaries for such Measurement Period).



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness (not including Earn Out Obligations), (c)
all obligations arising under letters of credit (including standby and commercial letters of credit
and LC Exposure), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business and Earn Out Obligations), (e) all Capitalized
Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness
of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is
a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.



     “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest
paid or payable with respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement
Period.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Interest Charges, in each case, of
the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period.



     “Consolidated Net Income” means, at any date of determination, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net income of any Subsidiary
during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by
operation of the terms of its Organization Documents or any agreement, instrument or law applicable
to such Subsidiary during such Measurement Period, except that the Borrower’s equity in any net
loss of any such Subsidiary for such Measurement Period shall be included



4









 







in determining Consolidated Net Income, and (c) any income (or loss) for such Period of any Person if such Person
is not a Subsidiary, except that the Borrower’s equity in the net income of any such Person for
such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such Period to the Borrower or a Subsidiary as a
dividend or other distribution (and in the case of a dividend or other distribution to a
Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower
as described in clause (b) of this proviso).



     “Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Funded Indebtedness (other than in respect of Indebtedness constituting
ordinary course settlement exposure secured by a debenture that constitutes a Permitted Lien) as of
the last day of the most recently ended Measurement Period for which a Compliance Certificate is
being or has been delivered to (b) Consolidated Adjusted EBITDA of Borrower and its Subsidiaries on
a consolidated basis for such Measurement Period.



     “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.



     “Copyright Memorandum” means the Memorandum of Grant of Security Interest in
Copyrights entered into pursuant to Section 5.9 by and among the Administrative Agent, on behalf of
itself and the Lenders, and each Loan Party that is signatory thereto, in form, scope and substance
satisfactory to the Administrative Agent.



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



     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Disposition” or “Dispose” means the sale, transfer, license, lease (other
than limited licenses to use of a Loan Party’s trademarks in connection with products, services and
projects marked jointly with other Persons and other license arrangements, in each case, granted in
the ordinary course of business of a Loan Party or such Subsidiary consistent with past practices)
or other disposition (including any sale and leaseback transaction) of any property by any Person
(or the granting of any option or other right to do any of the foregoing), 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.



     “dollars” or “$” refers to lawful money of the United States of America.



5









 





     “Domestic Subsidiary” shall mean each Subsidiary of a Loan Party that is organized
under the applicable laws of the United States, any state, territory, protectorate or commonwealth
thereof, or the District of Columbia.



     “Earn Out Obligations” means obligations incurred by the Borrower or its Subsidiaries
to make contingent payments of purchase price in connection with the acquisition of Marketshare
Limited and Marketshare Pte., Ltd. based solely upon future performance of such businesses
exceeding expected benchmarks as set forth in the definitive purchase agreement, such calculations
of such future performance to be made in good faith by a Responsible Officer of the Borrower.



     “Effective Date” means the date on which the conditions specified in Section
4.1 are satisfied (or waived in accordance with Section 9.2).



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



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



     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the



6









 







receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or
a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



     “Event of Default” has the meaning assigned to such term in Section 7.1.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to comply with Section
2.16(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section 2.16(a).



     “Existing Credit Agreement” means the Credit Agreement dated July 19, 2006 (as
amended) between the Borrower and JP Morgan Chase Bank, N.A.



     “Existing Letters of Credit” means, collectively, the letters of credit issued under
the Existing Credit Agreement (i) made in favor of 5 Independence SPE, LLC with reference number
TTTS-285117, in an original face amount of $88,600.00 and issued on September 28, 2006, (ii) made
in favor of Merritt 7 Venture L.L.C. with reference number TTTS-285118, in an original face amount
of $57,126.00 and issued on September 28, 2006 and (iii) made in favor of Scotiabank with reference
number TTTS-399880, in an original face amount of $50,000.



     “Extraordinary Receipt” means any proceeds of insurance, condemnation awards (and
payments in lieu thereof), indemnity payments and any purchase price adjustments.



     “Facility” means, collectively, the Revolving Credit Facility, the Term A Facility and
the Term B Facility.



7









 





     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Subsidiary” shall mean each Subsidiary of a Loan Party that is not a Domestic
Subsidiary.



     “GAAP” means generally accepted accounting principles in the United States of America.



     “Governmental Authority” means the government of the United States of America, any
other nation or 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.



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



     “Guarantor” means any Subsidiary that has signed a Guaranty Agreement in favor of the
Administrative Agent and the Lenders.



     “Guaranty Agreement” means, collectively, the Master Guaranty made by each Guarantor
and substantially in the form of Exhibit F and any other guaranty agreement in form, scope
and substance satisfactory to the Administrative Agent entered into by any Guarantor and delivered
pursuant to Section 4.1 or Section 5.9.



8









 





     “Harris Financial Information” means, collectively, Harris Financial Information”
means, collectively, (i) Harris Interactive Inc. Draft Consolidated Balance Sheets for the six
months ending December 31, 2008, (ii) Harris Interactive Inc. Draft Consolidated Statement of
Operations for the six months ending December 31, 2008, (iii) Harris Interactive Inc. Draft
Consolidated Statement of Cash Flows for the six months ending December 31, 2008, (iv) Harris
Interactive Business Plan PowerPoint presentation dated January 29, 2009, (v) Harris Interactive
Summary of Business Plan (July 2007 through June, 2011), (vi) Harris Financial Forecast Yearly and
Quarterly Financials 01-29-09, and (vii) Harris Interactive Consolidated Monthly Income Statement
01-29-09, each of items (i) through (vii) inclusive having been delivered to the Administrative
Agent on January 29, 2009 and the Lenders on January 30, 2009



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



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capitalized Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in respect of letters
of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person
in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.



     “Information Memorandum” means the Confidential Information Memorandum dated August 7,
2007 relating to the Borrower and the Transactions.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.7.



9









 





     “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.



     “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect,
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving Credit Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.



     “Issuing Bank” means JPMorgan Chase Bank, National Association in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.5(i). The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.



     “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



     “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The
LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.



     “Lenders” means, collectively, the Revolving Credit Lenders, the Term A Lenders and
the Term B Lenders.



     “Letter of Credit” means any letter of credit issued pursuant to this Agreement and
includes all Existing Letters of Credit.



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on the Reuters Screen LIBOR01 Page1 (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of



10









 







such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



     “Loan Documents” means this Agreement, each of the Notes, each Guaranty Agreement,
each Collateral Document and each other similar document executed in connection with the
Transactions hereunder.



     “Loan Party” means, collectively, (i) the Borrower and (ii) each Guarantor.



     “Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement
in the form of a Revolving Loan, a Term A Loan or a Term B Loan.



     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property, operations, prospects or condition (financial or otherwise) of the Borrower and the
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform any of its obligations
under this Agreement or any other Loan Documents, (c) the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a party, or (d) the rights
of or benefits available to the Lenders under this Agreement.



     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $250,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.



     “Maturity Date” means (i) June 21, 2011 with respect to the Revolving Credit Facility
and (ii) September 21, 2012, with respect to the Term A Facility and the Term B Facility.



     “Measurement Period” means, at any date of determination, the period of four
consecutive fiscal quarters of the Borrower ending on such date, or if such date is not a fiscal
quarter end date, the period of four consecutive fiscal quarters most recently ended (in each case
treated as a single accounting period).



     “Moody’s” means Moody’s Investors Service, Inc.



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




11











 





     “Multiple Advance Term Lender” means, prior to the Amendment Agreement No. 1 Effective
Date, any Lender that holds any Multiple Advance Term Loans at such time.



     “Multiple Advance Term Loan” means any term loan advanced by the Multiple Advance Term
Lenders hereunder prior to the Amendment Agreement No. 1 Effective Date and to be automatically
renamed the Term B Loan on the Amendment Agreement No.1 Effective Date and commitments relating
thereto shall be terminated. As of the Amendment Agreement No. 1 Effective Date, the outstanding
principal amount of all Multiple Advance Term Loans made hereunder equaled $16,968,750.00.



     “Net Cash Proceeds” means:



     (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries, the excess,
if any, of (i) the sum of cash and cash equivalents received in connection with such transaction
(including any cash or cash equivalents received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the
sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and
that is required to be repaid in connection with such transaction (other than Indebtedness under
the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by such Loan
Party or such Subsidiary in connection with such transaction and (C) income taxes reasonably
estimated to be actually payable within two years of the date of the relevant transaction as a
result of any gain recognized in connection therewith; provided that, if the amount of any
estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to
be paid in cash in respect of such Disposition, the aggregate amount of such excess shall
constitute Net Cash Proceeds; and



     (b) with respect to the sale or issuance of any Equity Interest by any Loan Party or any of
its Subsidiaries, or the incurrence or issuance of any Indebtedness by any Loan Party or any of its
Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received in connection
with such transaction over (ii) the underwriting discounts and commissions, and other reasonable
and customary out-of-pocket expenses, incurred by such Loan Party or such Subsidiary in connection
therewith.



     “Notes” means, collectively, the Revolving Credit Notes, the Term A Notes and the Term
B Notes.



     “Obligations” means (a) all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under this Agreement or any other Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against the any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding and (b) all obligations under any Swap Contract between the Borrower and
any Lender or any Affiliate of any Lender to the extent permitted under Section 6.5.



     “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



12









 




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 any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.



     “Outstanding Amount” means (a) with respect to Term A Loans, Term B Loans and
Revolving Loans on any date, the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Term A Loans, Term B Loans and Revolving Loans,
as the case may be, occurring on such date; and (b) with respect to any LC Exposure on any date,
the amount of such LC Exposure on such date after giving effect to any issuance, amendment,
extension or renewal Letter of Credit occurring on such date and any other changes in the aggregate
amount of the LC Exposure as of such date, including as a result of any reimbursements by the
Borrower of any outstanding LC Exposure.



     “Participant” has the meaning set forth in Section 9.4.



     “Patent Security Agreement” means the Patent Collateral Assignment and Security
Agreement, dated as of the Amendment Agreement No. 1 Effective Date, entered into by and among the
Administrative Agent, on behalf of itself and the Lenders, and each Loan Party that is signatory
thereto, and any other patent collateral assignment and security agreement in form, scope and
substance satisfactory to the Administrative Agent entered into by any Loan Party and delivered
pursuant to Section 5.9.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Perfection Certificate” means each perfection certificate, signed by the Borrower or
a Subsidiary, in form and substance satisfactory to the Administrative Agent.



     “Permitted Encumbrances” means:




     (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.4;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested in compliance with
Section 5.4;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;



13









 






     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Section 7.1; and




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Permitted Investments” means, collectively, the investments of the type identified in
the table below under the caption “Investment Type”, provided that, such investment (i) maintains,
at all times, a minimum Moody’s and S&P rating identified in the table below opposite such
investment type under the caption “Minimum Moody’s and/or S&P Rating”, (ii) matures within the time
period identified in the table below opposite such investment type under the caption “Maximum
Maturity” from the date of acquisition thereof, provided, that the Maximum Maturity of “Auction
Rate Securities” and “Floating Rate Securities” shall be based on the next auction or reset date
identified in such securities, (iii) comprises, as of the date on which a Person commits to acquire
such investment, no more than the percentages identified in the table below opposite such
investment type under the caption “Maximum Percentage of Outstanding Investments” (assuming the
numerator used to determine compliance with such limitations equals the aggregate principal amount
of such investment to be acquired, and the denominator used to determinate compliance equals the
aggregate principal amount of all outstanding investments then held by the Borrower and its
Subsidiaries (including the aggregate principal amount of the investment to be acquired), in each
case, as of the date on which a Person commits to acquire such investment), (iv) with respect to
any single issuer, comprises, as of the date on which a Person commits to acquire such investment,
no more than the percentage of the relevant investment type identified in the table below opposite
such investment under the caption “Maximum Percentage of Outstanding Investment with a Single
Investor” (assuming the numerator used to determine compliance with such limitations equals the
aggregate principal amount of such investment to be acquired, and the denominator used to determine
compliance equals the aggregate principal amount of all outstanding investments then held by the
Borrower and its Subsidiaries and issued or offered by the same issuer as the investment to be
acquired (including the aggregate principal amount of the investment to be acquired), in each case,
as of the date on which a Person commits to acquire such investment), (v) for any investment type
constituting “United States Treasury”, “Agency Obligations” and “Repurchase Obligations”, such
investments shall be limited to direct obligations of, or obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or any agency thereof to the extent such obligations are backed



14









 




by the full faith and credit of the United States of America), and fully collateralized repurchase
agreements for such securities entered into with a Qualifying Institution (as defined below), and
(vi) for any investment type constituting “Certificates of Deposit”, “Time Deposits”, “Banker’s
Acceptances” and “Bank Notes”, such investment shall be issued or offered by a Qualified
Institution.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Maximum
	 	 	 	 	 	 	Maximum	 	Percentage of
	 	 	 	 	 	 	Percentage of	 	Outstanding
	Investment	 	Minimum Moody’s	 	Maximum	 	Outstanding	 	Investment with
	Type	 	and/or S&P Rating	 	Maturity	 	Investments	 	a Single Issuer
	United States
Treasury, Agency
Obligations and
Repurchase
Obligations

	 	Aaa/AAA
	 	2 years
	 	 	100	%	 	Not Applicable

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Commercial Paper

	 	A1/P1
	 	270 days
	 	 	100	%	 	 	20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Certificates of
Deposit, Time
Deposits, Banker’s
Acceptances, Bank
Notes

	 	A1/P1
	 	1 year
	 	 	100	%	 	 	20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Auction Rate
Securities

	 	A/A
	 	2 years
	 	 	100	%	 	 	20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Corporate Bonds

	 	A/A
	 	2 years
	 	 	50	%	 	 	10	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Corporate Bonds

	 	BBB/BBB
	 	2 years
	 	 	10	%	 	 	5	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Taxable Municipal
Bonds

	 	A/A
	 	2 years
	 	 	50	%	 	 	20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Floating Rate
Securities

	 	A/A
	 	2 years
	 	 	50	%	 	 	20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Money Market Funds

	 	Aaa/AAA
	 	Not Applicable
	 	 	100	%	 	Not Applicable







     As used herein, “Qualified Institution” shall mean, the domestic office of any
commercial bank organized under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than $500,000,000.



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



15









 





     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Pledge Agreement” means, collectively, the Master Securities Pledge Agreement made by
each Loan Party and substantially in the form of Exhibit G and any other securities pledge
agreement in form, scope and substance satisfactory to the Administrative Agent entered into by any
Loan Party and delivered pursuant to Section 4.1 or Section 5.9.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its office located at 270 Park Avenue, New
York, New York; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.



     “Projections” has the meaning set forth in Section 5.1(g).



     “Public Lender” has the meaning set forth in Section 5.1.



     “Quarterly Payment Date” means the last day of each fiscal quarter of the Borrower, or
if any such day is not a Business Day, the next succeeding Business Day.



     “Register” has the meaning set forth in Section 9.4.



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



     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in LC Exposure being deemed “held” by such
Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments.



     “Required Revolving Credit Lenders” means, at any time, Revolving Credit Lenders
having Revolving Credit Exposures and unused Revolving Credit Commitments representing more than
50% of the sum of the Total Revolving Credit Exposures and unused Revolving Credit Commitments at
such time.



     “Responsible Officer” means the chief executive officer, president or a Financial
Officer of the Borrower or any other person authorized by the Board of Directors of the Borrower to
sign Loan Documents on its behalf. Any document delivered hereunder that is signed by a
Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,



16









 







acquisition,
cancellation
or termination of any such Equity Interests in the Borrower or any option, warrant or other
right to acquire any such Equity Interests in the Borrower.



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Revolving Credit Lenders pursuant to Section 2.1(a).



     “Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the
commitment of such Revolving Credit Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of
such Revolving Credit Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.8 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.4. The initial
amount of each Revolving Credit Lender’s Commitment is set forth on Schedule 2.1, or in the
Assignment and Assumption pursuant to which such Revolving Credit Lender shall have assumed its
Revolving Credit Commitment, as applicable.



     “Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any
time, the sum of the outstanding principal amount of such Revolving Credit Lender’s Revolving Loans
and its LC Exposure at such time.



     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.



     “Revolving Credit Lenders” means the Persons listed on Schedule 2.1 and any
other Person that shall have become a revolving credit lender hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption.



     “Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Loans made by such Revolving Credit Lender,
substantially in the form of Exhibit C-1.



     “Revolving Loan” means a Loan made pursuant to Section 2.1(a).



     “S&P” means Standard & Poor’s.



     “Secured Party” means, collectively, the Administrative Agent, the Lenders, the
Issuing Bank, and any Affiliate of any Lender that is party to a Swap Contract referred to in
Section 6.5.



     “Securities” shall have the meaning ascribed to such term in the Pledge Agreement.



     “Securities Collateral” shall have the meaning ascribed to such term in the Pledge
Agreement.



     “Security Agreement” means, collectively, the Master Security Agreement, dated as of
the Amendment Agreement No. 1 Effective Date, entered into by and among the Administrative Agent,
on behalf of itself and the Lenders, the Borrower and each Domestic Subsidiary, and substantially
in the form of Exhibit H, and any other security agreement in form, scope and substance
satisfactory to the Administrative Agent entered into by any Loan Party and delivered pursuant to
Section 5.9.



17









 





     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.



     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.



     “Subsidiary” means any subsidiary of the Borrower.



     “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.



     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



     “Term A Borrowing” means a borrowing consisting of simultaneous Term A Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the Term A Lenders pursuant to Section 2.1(b).



     “Term A Commitment” means, as to each Term A Lender, its obligation to make Term A
Loans to the Borrower pursuant to Section 2.1(b) in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term A Lender’s name on
Schedule 2.1 under the caption “Term A Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Term A Lender becomes a party



18









 




hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.




     “Term A Facility” means, at any time, (a) prior to the Effective Date, the aggregate
amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal amount of
the Term A Loans of all Term A Lenders outstanding at such time.



     “Term A Lender” means (a) at any time on or prior to the Effective Date, any Lender
that has a Term A Commitment at such time and (b) thereafter, any Lender that holds Term A Loans at
such time.



     “Term A Loan” means an advance made by any Term A Lender under the Term A Facility.



     “Term A Note” means a promissory note made by the Borrower in favor of a Term A Lender
evidencing Term A Loans made by such Term A Lender, substantially in the form of Exhibit
C-2.



     “Term B Borrowing” means the conversion of Multiple Advance Term Loans into Term B
Loans on the Amendment Agreement No. 1 Effective Date pursuant to Section 2.1(c).



     “Term B Commitment” means, as to each Term B Lender, its obligation to make Term B
Loans to the Borrower pursuant to Section 2.1(c) in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term B Lender’s name on
Schedule 2.1 under the caption “Term B Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Term B Facility” means, at any time on and after the Amendment Agreement No. 1
Effective Date, the aggregate principal amount of the Term B Loans of all Term B Lenders
outstanding at such time.



     “Term B Lender” means, at any time on and after the Amendment Agreement No. 1
Effective Date, any Lender that holds Term B Loans at such time.



     “Term B Loan” means any loan that was automatically renamed from a Multiple Advance
Term Loan to a term B loan on the Amendment Agreement No. 1 Effective Date pursuant to Section
2.1(c) and which is held by any Lender under the Term B Facility.



     “Term B Note” means a promissory note made by the Borrower in favor of a Term B Lender
evidencing Term B Loans made by such Term B Lender, substantially in the form of Exhibit
C-3.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all LC
Exposure.



     “Trademark Security Agreement” means the Trademark Collateral Security and Pledge
Agreement, dated as of the Amendment Agreement No. 1 Effective Date, entered into by and among the
Administrative Agent, on behalf of itself and the Lenders, and each Loan Party that is signatory
thereto, and any other trademark collateral security and pledge agreement in form, scope and
substance satisfactory to the Administrative Agent entered into by any Loan Party and delivered
pursuant to Section 5.9.



19









 





     “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement and the other Loan Documents, the borrowing of Loans, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.



     “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York,
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Securities Collateral is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.



     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




     SECTION 1.2. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type
(e.g., a “Eurodollar Revolving Loan”). Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type
(e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a
“Eurodollar Revolving Borrowing”).




     SECTION 1.3. Terms Generally. 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 (a) any definition of or reference to any
agreement, instrument or other document herein 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),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) 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.




     SECTION 1.4. Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time; provided that, if the Borrower notifies the



20









 







Administrative
Agent that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.



ARTICLE II.

THE CREDITS





     SECTION 2.1. Loans.




     (a) Revolving Loans: Subject to the terms and conditions set forth herein,
each Revolving Credit Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will not result in
(i) such Revolving Credit Lender’s Revolving Credit Exposure exceeding such Revolving Credit
Lender’s Revolving Credit Commitment or (ii) the sum of the total Revolving Credit Exposures
exceeding the total Revolving Credit Commitments. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.




     (b) Term A Loan. Subject to the terms and conditions set forth herein, each
Term A Lender severally agrees to make a single term loan to the Borrower on the Effective
Date in an amount not to exceed such Term A Lender’s Term A Commitment. The Borrowing shall
consist of Term A Loans made simultaneously by the Term A Lenders in accordance with their
respective Term A Commitments. Amounts borrowed under this Section 2.1(b) and
repaid or prepaid may not be reborrowed.




     (c) Term B Loan. On the Amendment Agreement No. 1 Effective Date, the
outstanding principal amount of the Multiple Advance Term Loans shall be automatically
renamed the Term B Loan. All commitments for the Multiple Advance Term Loans shall
terminate concurrently therewith. Such renaming will not require any action on the part of
the Borrower, the Administrative Agent or the Lenders. The Term B Loan once repaid or
prepaid may not be reborrowed.




     SECTION 2.2. Loans and Borrowings. (a)  Each Loan shall be made as part of a
Borrowing consisting of Revolving Loans, Term A Loans or Term B Loans, as applicable, made by the
Lenders ratably in accordance with their respective Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make Loans as required.




     (a) Subject to Section 2.13, each Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith.



21









 






Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.




     (b) At the commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not
less than $200,000. At the time that each ABR Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $100,000 and not less than $200,000;
provided that an ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total applicable Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.5(e). Borrowings
of more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of 8 Eurodollar Borrowings outstanding.




     (c) Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.




     SECTION 2.3. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing; provided that
any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.5(e) may be given not later than 10:00 a.m., New York City
time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request and in the form of Exhibit D or in a form approved
by the Administrative Agent and, in each case signed by a Responsible Officer of the Borrower.
Each such telephonic and written Borrowing Request shall specify the following information in
compliance with Section 2.2:




     (i) such Borrowing is comprised of Revolving Loans;




     (ii) the aggregate amount of the requested Borrowing;




     (iii) the date of such Borrowing, which shall be a Business Day;




     (iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;




     (v) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and



22









 






     (vi) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.6.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.





     SECTION 2.4. Intentionally Omitted.




     SECTION 2.5. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its
own account, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice signed by a
Responsible Officer of the Borrower requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date
of issuance, amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend, renew or extend
such Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank’s standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$5,000,000 and (ii) the sum of the total Revolving Credit Exposures shall not exceed the
total Revolving Credit Commitments.




     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the issuance of
such
Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such



23









 







renewal or extension) and (ii) the date that is five Business Days prior to the
Maturity Date.




     (d) Participations. By the issuance of a Letter of Credit (or an amendment to
a Letter of Credit increasing the amount thereof) and without any further action on the part
of the Issuing Bank or the Revolving Credit Lenders, the Issuing Bank hereby grants to each
Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Revolving Credit Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the Issuing Bank, such Revolving Credit Lender’s Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment required
to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.




     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00
noon, New York City time, on the date that such LC Disbursement is made, if the Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time,
on such date, or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 10:00 a.m., New York
City time, on the day of receipt, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is not received prior to such time on
the day of receipt; provided that ,if such LC Disbursement is not less than $
50,000, the Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.3 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation
to make such payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing. If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Revolving Credit Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Revolving Credit Lender’s Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving Credit Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.6 with respect to
Revolving Loans
made by such Revolving Credit Lender (and Section 2.6 shall apply,
mutatis



24









 







mutandis, to the payment obligations of the Revolving Credit
Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Credit Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent
that Revolving Credit Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Revolving Credit Lenders and the Issuing Bank as their interests
may appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower
of its obligation to reimburse such LC Disbursement.




     (f) Obligations Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement under any and all circumstances whatsoever and irrespective of (i) any
lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms
of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused
by the Issuing Bank’s failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation,



25









 







regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.




     (g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.




     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when
due pursuant to paragraph (e) of this Section, then Section 2.12(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any Revolving Credit
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall
be for the account of such Lender to the extent of such payment.




     (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any
time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing
Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of
any such replacement of the Issuing Bank. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of any
such replacement, (i) the successor Issuing Bank shall have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.




     (j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Revolving Credit Lenders (or, if the maturity of the Revolving Loans
has been accelerated, Revolving Credit Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash



26









 







collateral pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Revolving Credit Lenders, an amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
clause (i) of Section 7.1. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the Borrower under
this Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Revolving Loans has been accelerated (but subject to the consent of
Revolving Credit Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If
the Borrower is required to provide an amount of cash collateral hereunder as a result of
the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.




     SECTION 2.6. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in New York City
and designated by the Borrower in the applicable Borrowing Request; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.5(e) shall be remitted by the Administrative Agent to the Issuing Bank.




     (b) Unless the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section 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 with interest



27









 







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 (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.




     SECTION 2.7. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.




     (b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request
would be required under Section 2.3 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by a Responsible
Officer of the Borrower.




     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.2:




     (i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.



28









 




If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.





     (d) Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.




     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to
a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to
an ABR Borrowing at the end of the Interest Period applicable thereto.




     SECTION 2.8. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.




     (b) The Borrower may at any time terminate, or from time to time reduce, the Revolving
Credit Commitments; provided that (i) each reduction of the Revolving Credit
Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Credit
Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures would exceed
the total Revolving Credit Commitments.




     (c) The Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Revolving Credit Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable and signed by a
Responsible Officer of the Borrower; provided that a notice of termination of all
Revolving Credit 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. Any termination or reduction
of the Revolving Credit Commitments shall be permanent. Each reduction of the Revolving
Credit Commitments shall be made ratably among the applicable Lenders in accordance with
their respective Revolving Credit Commitments.




     SECTION 2.9. Evidence of Debt.



29









 






     (a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan
made by such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.




     (b) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account of the Lenders and
each Lender’s share thereof.




     (c) The entries made in the accounts maintained pursuant to paragraph (a) or
paragraph (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.




     (d) Any Lender may request that the applicable Loans made by it be evidenced by a Note,
as appropriate. In such event, the Borrower shall prepare, execute and deliver to such
Lender a Note payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns). Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after assignment pursuant to Section
9.4) be represented by one or more Notes in such form payable to the order of the payee
named therein (or, if such Note is a registered note, to such payee and its registered
assigns).




     SECTION 2.10. Prepayment and Repayments of Loans.




     (a) Voluntary Prepayments. (i)  The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with paragraph (a)(ii) of this Section.




     (ii) The Borrower shall notify the Administrative Agent by telephone (confirmed
by telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business
Days before the date of prepayment or (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day before
the date of prepayment. Each such notice shall be irrevocable, shall specify the
Facility to be repaid, the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid and shall be signed by a Responsible
Officer of the Borrower; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.8, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.8.
Promptly
following receipt of any such notice relating to a



30









 







Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in Section
2.2. Each prepayment of a Borrowing shall be applied to the applicable Loans
included in the prepaid Borrowing, provided that any prepayment of the Term
A Loans and/or the Term B Loans shall be applied to the principal repayment
installments thereof in inverse order of maturity, and each such prepayment shall be
paid to the applicable Lenders in accordance with their respective Applicable
Percentages in respect of each of the relevant Facilities. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12 and
any amounts payable under Section 2.15.




     (b) Mandatory Repayments.




     (i) The Borrower hereby unconditionally promises to pay and shall repay to the
Administrative Agent for the account of each Lender the then unpaid principal amount
of each Loan on the Maturity Date.




     (ii) Commencing with the Quarterly Payment Date occurring on December 31, 2007,
on each Quarterly Payment Date thereafter, the Borrower shall repay the outstanding
principal amount of the Term A Loans in an amount equal to $600,000.




     (iii) Commencing with the Quarterly Payment Date on December 31, 2007, on each
Quarterly Payment Date, the Borrower shall repay the outstanding principal amount of
the Term B Loans in an amount equal to 5.0% of each Term B Borrowing made hereunder.




     (iv) If any Loan Party or any of its Subsidiaries Disposes of any property
(other than any Disposition of any property permitted by Section 6.3) which
results in the realization by such Person of Net Cash Proceeds, the Borrower shall
prepay an aggregate principal amount of Loans equal to 100% of such Net Cash
Proceeds immediately upon receipt thereof by such Person (such prepayments to be
applied as set forth in clause (viii) below)




     (v) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of
any of its Equity Interests (other than any issuances of Equity Interests as
provided in Section 6.6(a) and Section 6.6(c)), the Borrower shall
prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds
received therefrom immediately upon receipt thereof by such Loan Party or such
Subsidiary (such prepayments to be applied as set forth in clause (viii).




     (vi) Upon the incurrence or issuance by any Loan Party or any of its
Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be
incurred or issued pursuant to Section 6.1), the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds



31









 







received therefrom immediately upon receipt thereof by such Loan Party or such
Subsidiary (such prepayments to be applied as set forth in clause (viii)
below).




     (vii) Upon any Extraordinary Receipt in excess of $100,000 received by or paid
to or for the account of any Loan Party or any of its Subsidiaries, and not
otherwise included in clause (iv), (v) or (vi) of
this Section 2.10(b), the Borrower shall prepay an aggregate principal
amount of Loans equal to 100% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by such Loan Party or such Subsidiary (such
prepayments to be applied as set forth in clause (viii) below);
provided, however, that with respect to any proceeds of insurance or
condemnation awards (or payments in lieu thereof), at the election of the Borrower
(as notified by the Borrower to the Administrative Agent on or prior to the date of
receipt of such insurance proceeds or condemnation awards), and so long as no
Default or Event of Default shall have occurred and be continuing, such Loan Party
or such Subsidiary may apply within 90 days after the receipt of such cash proceeds
to replace or repair the equipment, fixed assets or real property in respect of
which such cash proceeds were received; and provided, further,
however, that any cash proceeds not so applied shall be immediately applied
to the prepayment of the Loans as set forth in this Section 2.10(b)(viii).




     (viii) Each prepayment of Loans pursuant to the foregoing provisions of
clauses (iv) through (vii), inclusive, of this Section
2.10(b) shall be applied, first, ratably to each of the Term A Facility
and the Term B Facility and to the principal repayment installments thereof in
inverse order of maturity and, second, to the Revolving Credit Facility
(together with a corresponding reduction in the Revolving Credit Commitments).




     SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Credit Lender a commitment fee, which shall accrue at a rate equal
to 0.50% on the daily undrawn amount of the Revolving Credit Commitment of such Lender (whether
used or unused) during the period from and including Effective Date to but excluding the date on
which such Commitment terminates. Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on which the
applicable Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last
day).




     (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Credit Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue at a rate equal to 4.00% on the average daily amount of such
Revolving Credit Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Effective Date to
but excluding the later of the date on which such Lender’s Revolving Credit Commitment
terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall



32









 







accrue at the rate
of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from and including
the Effective Date to but excluding the later of the date of termination of the Revolving
Credit Commitments and the date on which there ceases to be any LC Exposure, as well as the
Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension
of any Letter of Credit or processing of drawings thereunder. Participation fees and
fronting fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that
all such fees shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving Credit
Commitments terminate shall be payable on demand. Any other fees payable to the Issuing
Bank pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).




     (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.




     (d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to
it) for distribution, in the case of commitment fees and participation fees, to the
applicable Lenders. Fees paid shall not be refundable under any circumstances.




     SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus 4.00%.




     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus 4.00%.




     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any
fee or other amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in
the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus
the rate applicable to ABR Loans as provided in paragraph (a) of this Section.




     (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment
Date for such Loan and, in the case of Revolving Loans, upon termination of the Commitments
therefor; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or prepaid shall be



33









 







payable on the date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.




     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when the Alternate
Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.




     SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing
if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other
Type of Borrowings shall be permitted.





     SECTION 2.14. Increased Costs. (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) or the Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market
any other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein;



34









 




and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.





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




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




     (d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that such Lender
or the Issuing Bank, 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 Issuing Bank’s
intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of retroactive
effect thereof.




     SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to



35









 







borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section
2.10(a) and is revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result of a request by
the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.




     SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.




     (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




     (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing
Bank, within 10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as
the case may be, on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall
be conclusive absent manifest error.



36









 






     (d) As soon as 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) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.




     (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.16, it shall pay over such refund to the Borrower (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender 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 or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.




     SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.14, Section 2.15 or Section 2.16, or otherwise) prior to 12:00 noon, New
York City time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 270 Park Avenue, New York, New York, except payments to be made directly
to the Issuing Bank as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment



37









 







hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
dollars.




     (b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably to the Revolving Credit Facility, Term A
Facility and the Term B Facility and each such payment shall be paid to the Lenders in
accordance with their respective Applicable Percentages in respect of each of the relevant
Facilities, (ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder ratably to the Revolving Credit Facility, Term A Facility and Term B Facility
and each such payment shall be paid to the Lenders in accordance with their respective
Applicable Percentages in respect of each of the relevant Facilities.




     (c) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or
participations in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other Lenders to the extent necessary 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
participations in LC Disbursements; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
Borrower 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 the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.




     (d) 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 Issuing Bank 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



38









 







assumption, distribute to the Lenders or
the Issuing Bank, 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 Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.




     (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.5(d) or (e), Section 2.6(b), Section 2.17(d) or
Section 9.3(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid.




     SECTION
2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, 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 2.16, 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 2.14 or Section 2.16, as the case may be, in the future and
(ii) 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) If any Lender requests compensation under Section 2.14, 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 2.16, or if any Lender defaults in its
obligation to fund Loans hereunder, 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
Section 9.4), all its interests, rights and obligations under this Agreement 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 received
the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, 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)
and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.14 or payments required to be



39









 







made pursuant to Section 2.16, such
assignment will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and 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.



ARTICLE III

REPRESENTATIONS AND WARRANTIES





The Borrower represents and warrants to the Lenders that:




     SECTION 3.1. Organization; Powers. Each Loan Party and each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.




     SECTION 3.2. Authorization; Enforceability. The Transactions are within the each
Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement and the other Loan Documents has been duly executed
and delivered by each Loan Party to which such Person is a party and constitutes a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.




     SECTION 3.3. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the Organization Documents of
any Loan Party or any of its Subsidiaries or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or other instrument binding
upon the any Loan Party or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by any Loan Party or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of any Loan Party or
any of its Subsidiaries except a Lien in favor of the Administrative Agent under the Collateral
Documents.




     SECTION 3.4. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended June 30, 2008,
reported on by an Approved Auditor, and (ii) as of and for the fiscal quarter ended September 30,
2008, certified by its chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such periods in



40









 







accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.




     (b) Since June 30, 2006, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, except as otherwise disclosed in the Harris Financial
Information delivered to the Administrative Agent on January 29, 2009 and to the Lenders on
January 30, 2009.




     SECTION 3.5. Properties; Liens. (a) Each Loan Party and each of its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for their intended
purposes.




     (b) Each Loan Party and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by such Loan Party and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




     (c) The property of each of Loan Party and each of its Subsidiaries is subject to no
Liens, other than Permitted Encumbrances and Liens expressly permitted in Section
6.2 hereof.




     SECTION 3.6. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting any Loan Party or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.




     (b) Except with respect to any matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, neither any Loan Party
nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.




     SECTION 3.7. Compliance with Laws and Agreements. Each Loan Party and each of its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred
and is continuing.




41











 






          SECTION 3.8. Investment and Holding Company Status. Neither the Borrower nor any
of its Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under,
the Investment Company Act of 1940 or (b) is a “holding company,” or a “subsidiary company” of a
“holding company,” or an “affiliate” of a “holding company”, as such terms are defined in the
Public Utility Holding Company Act of 2005, and neither the Borrower or any of its Subsidiaries
is subject to regulation as a “public utility” under the Federal Power Act, as amended.




          SECTION 3.9. Taxes. Each of the Loan Parties and its Subsidiaries has timely filed
or caused to be filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Loan Party or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that
the failure to do so could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a Material Adverse
Effect. The present value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts, exceed by more than
$100,000 the fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $100,000 the fair
market value of the assets of all such underfunded Plans.




          SECTION 3.11. Subsidiaries. Schedule 3.11 (as such Schedule may be updated
from time to time with the prior written consent of the Administrative Agent) is a complete list
of each of the Borrower’s Subsidiaries and such Subsidiary’s jurisdiction of incorporation.




          SECTION 3.12. Federal Regulations. Neither the Borrower nor any of its
Subsidiaries is engaged or will engage in any activities, nor shall use any portion of the
proceeds of the Loans be used for any purpose, which in either case violate or are inconsistent
with the provisions of Regulations U and X of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect.




          SECTION 3.13. Specially Designated Nationals or Blocked Persons List. None of the
Borrower, the Subsidiaries or any Affiliates of the Borrower are named on the United States
Department of the Treasury’s Specially Designated Nationals or Blocked Persons list.




          SECTION 3.14. Collateral Documents. Each Collateral Document is effective to
create in favor of the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, a legal, valid and enforceable first priority security interest in the
Collateral and proceeds thereof. In the case of the Securities described in the Pledge
Agreement, when certificates representing such Securities are delivered to the Administrative
Agent, and in the case of the other Securities Collateral described in the Pledge Agreement



42









 







and the Collateral described in the other Collateral Documents, when financing statements and
other filings specified therein in appropriate form are filed in the offices specified therein,
and in the case of the Collateral generally, such other actions as required by applicable law
have been taken, the Collateral Documents shall constitute a fully perfected Lien on, and first
priority security interest in, all right, title and interest of the applicable Loan Parties in
such Collateral and the proceeds thereof as security for the Obligations.




     SECTION 3.15. Disclosure. Each Loan Party has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of a Loan Party to the Administrative Agent or any Lender
in connection with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time, and further provided
that other forward looking information is based upon reasonable and estimates made in good faith
by the Borrower and which the Borrower believed to be reasonable at the time of making.



ARTICLE IV.

CONDITIONS




     SECTION 4.1. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived in accordance with Section
9.2, or, unless the Administrative Agent in its sole discretion determines that the
satisfaction of one or more of the following conditions precedent may be satisfied on a
post-closing basis pursuant to a Post-Closing Agreement entered into by the Borrower and the
Administrative Agent in form, scope and substance satisfactory to the Administrative Agent):




          (a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) an original counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.




          (b) The Administrative Agent (or its counsel) shall have received either (i) an
original counterpart of the Guaranty signed on behalf of each of the Guarantors or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of the Guaranty) that such party has signed a
counterpart of the Guaranty.



43









 






          (c) The Administrative Agent (or its counsel) shall have received either (i) an
original counterpart of the Pledge Agreement signed on behalf of the parties designated by
the Borrower and those Subsidiaries for which Equity Interests are being pledged or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of the Pledge Agreement) that such party has signed
a counterpart of the Pledge Agreement. The Administrative Agent shall have received all
certificates representing such Equity Interests pledged under the Pledge Agreement,
accompanied by instruments of transfer and undated stock powers endorsed in blank, each in
form and substance satisfactory to the Administrative Agent; and the Borrower shall have
taken all steps necessary under applicable law to perfect the Lien of the Administrative
Agent in such Equity Interests.




          (d) The Administrative Agent shall have received the results of a search of the UCC
filings (or equivalent filings), in addition to tax Lien, judgment Lien, bankruptcy and
litigation searches made with respect to each Loan Party, together with copies of the
financing statements and other filings (or similar documents) disclosed by such searches,
and accompanied by evidence satisfactory to the Administrative Agent that the Liens
indicated in any such financing statement and other filings (or similar document) are
Permitted Encumbrances or have been released or will be released substantially
simultaneously with the initial Borrowing hereunder.




          (e) The Administrative Agent shall have received evidence, in form and substance
satisfactory to the Administrative Agent, that appropriate UCC (or equivalent) financing
statements have been duly filed in such office or offices as may be necessary or, in the
opinion of Administrative Agent, desirable, to perfect the Administrative Agent’s Liens in
and to the Securities Collateral and certified searches reflecting the filing of all such
financing statements.




          (f) The Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Harris
Beach PLLC, counsel for the Borrower, substantially in the form of Exhibit B, and
covering such other matters relating to the Borrower, this Agreement or the Transactions as
the Required Lenders shall reasonably request; and (ii) local counsel to the Borrower, in
form, scope and substance satisfactory to the Administrative Agent, and covering such other
matters relating to the Borrower and the other Loan Parties, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinion.




          (g) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its counsel.




          (h) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the



44









 







Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and
(b) of Section 4.2.




          (i) The Administrative Agent and the Lead Arranger shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.




          (j) The Administrative Agent shall have received evidence that all governmental and
third party approvals necessary or, in the discretion of the Administrative Agent, advisable
in connection with the Transaction and the continuing operations of the Borrower and its
Subsidiaries shall have been obtained and be in full force and effect.




          (k) The Administrative Agent shall have received (i) satisfactory audited consolidated
financial statements of the Borrower for the two most recent fiscal years ended prior to the
Effective Date as to which such financial statements are available and (ii) satisfactory
unaudited interim consolidated financial statements of the Borrower for each quarterly
period ended subsequent to the date of the latest financial statements delivered pursuant to
clause (i) of this paragraph as to which such financial statements are available.




          (l) The Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that the Existing Credit Agreement has been, or concurrently with
Effective Date is being, terminated and all Liens securing obligations under the Existing
Credit Agreement, if any, have been, or concurrently with the Effective Date are being,
released and terminated.




          (m) Since June 30, 2006, there shall not have occurred any Material Adverse Effect.




          (n) The Administrative Agent and the Lenders shall have received (i) all documentation
and other information reasonably requested by the Lenders or the Administrative Agent under
applicable “know your customer” and anti-money laundering rules and regulations, including
the USA Patriot Act and (ii) such other documents and instruments as are customary for
transactions of this type or as they may reasonably request.


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section
9.2) at or prior to 3:00 p.m., New York City time, on September 30, 2007 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall terminate at such
time).




45









 









          SECTION 4.2. Each Credit Event. The obligation of each Lender to make a Loan on
the occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any
Letter of Credit, is subject to the satisfaction of the following conditions:




          (a) The representations and warranties of the Borrower set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.




          (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default or Event of Default shall have occurred and be continuing or would result from such
Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V.

AFFIRMATIVE COVENANTS




     Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in cash in full and all Letters of
Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:




          SECTION 5.1. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:




          (a) within 90 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by an Approved Auditor
(without a “going concern” or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;




          (b) (i)within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, its consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a consolidated



46









 







basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;




               (ii) within 30 days after the end of each fiscal month of the Borrower commencing with
the month ending February 28, 2009, management prepared consolidated and consolidating
balance sheets, and related statements of operations, stockholder’s equity and cash flows of
the Borrower as of the end of and for such fiscal month and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year; all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition of the Borrower and its Subsidiaries
on a consolidated and consolidating basis, subject to normal quarterly true-ups and
adjustments, and as being prepared in good faith;




          (c) concurrently with any delivery of financial statements under clause (a), or
clause (b) above, a Compliance Certificate in the form of Exhibit E of a
Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.9 and (iii) stating whether any change in
GAAP or in the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.4 that could potentially impact the Borrower
and, if any such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;




          (d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with
the Securities and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be;




          (e) promptly after Moody’s or S&P shall have announced a change in the rating
established or deemed to have been established for the Index Debt, written notice of such
rating change;




          (f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request;




          (g) promptly, but in any event, within 30 days after the commencement of each fiscal
year of the Borrower, a detailed consolidated budget by month for such fiscal year
(including a projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year) approved by the
Borrower’s board of directors (the “Projections”); and



47









 






          (h) promptly, but in any event within five (5) Business Days of any payment of an Earn
Out Obligation, deliver to the Administrative Agent an officer’s certificate, signed by a
Responsible Officer of the Borrower, setting forth reasonably detailed calculations of the
Earn Out Obligation paid or to be paid and attaching a copy of the applicable definitive
documentation setting forth the calculation for such Earn Out Obligation.




          The Borrower hereby acknowledges that (a) the Administrative Agent will make available
to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of
the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish
to receive material non-public information with respect to the Borrower or its Affiliates,
or the respective securities of any of the foregoing, and who may be engaged in investment
and other market-related activities with respect to such Persons’ securities. The Borrower
hereby agrees that it will use commercially reasonable efforts to identify that portion of
the Borrower Materials that may be distributed to the Public Lenders and that (w) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Issuing Bank and the Lenders to treat such Borrower Materials as
not containing any material non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section
9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Investor;” and (z) the Administrative
Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public
Investor.”




          SECTION 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




          (a) the occurrence of any Default;




          (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




          (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $100,000; and




          (d) of the (i) occurrence of any Disposition of property or assets for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.10(b),
(ii)



48









 







occurrence of any sale of Equity Interests for which the Borrower is required to make a
mandatory prepayment pursuant to Section 2.10(b), (iii) incurrence or issuance of
any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant
to Section 2.10(b), and (iv) receipt of any Extraordinary Receipt for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.10(b); and




          (e) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.





          SECTION 5.3. Existence; Conduct of Business. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted under Section
6.3.




          SECTION 5.4. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by appropriate proceedings,
(b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.5. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.




          SECTION 5.6. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries in all material respects are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts
from
its books and records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as reasonably requested
and, so long as no Default or Event of Default is then continuing, upon reasonable notice to the
Borrower.




          SECTION 5.7. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental



49









 







Authority applicable to it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.8. Use of Proceeds and Letters of Credit. The proceeds of the Revolving
Loans and the Term B Loans will be used only for general corporate purposes, including share
repurchases permitted pursuant in the terms hereof. The proceeds of the Term A Loan will be used
on the Effective Date to refinance the Existing Credit Agreement. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations T, U and X. Letters of Credit will be
issued for general corporate purposes.




          SECTION 5.9. Additional Subsidiaries.




          (a) At any time that any Loan Party or any newly formed or acquired Subsidiary that is
to become a Loan Party pursuant to clause (b) below acquires any personal property
not subject to a perfected security interest in and Lien in favor of the Administrative
Agent pursuant to the Collateral Documents, within five (5) Business Days after the
acquisition of such personal property by such Person, the Borrower shall furnish to the
Administrative Agent, in reasonable detail, a written description of such personal property.




          (b) Within thirty (30) days of the formation or acquisition of a Subsidiary by any Loan
Party (other than a Foreign Subsidiary, which is addressed in clause (c) below), the
Borrower shall, and shall cause any such Subsidiary to, at the Borrower’s expense, (i) duly
execute and deliver to the Administrative Agent a joinder agreement to the Guaranty, the
Security Agreement and the Pledge Agreement, and all other applicable Collateral Documents
specified by and in form and substance satisfactory to the Administrative Agent, (ii)
deliver to the Administrative Agent documents of the types referred to in Section
4.1(d), Section 4.1(f) and Section 4.1(g), and (iii) deliver to the
Administrative Agent any other documents and instruments requested by the Administrative
Agent, including favorable opinions of counsel to the Borrower and such Subsidiary (which
shall cover, among other things, the legality, validity, binding effect and enforceability
of the documentation referred to in clause (i)), all in form, content and scope
reasonably satisfactory to the Administrative Agent. In addition, the Borrower shall, and
shall cause any such Subsidiary to, at the Borrower’s expense, take all such other actions
as the Administrative Agent may consider necessary or desirable to give full effect to the
Guaranty and to perfect and preserve the rights and powers of the Administrative Agent and
the Lenders under the Collateral Documents.




          (c) Within thirty (30) days of the formation or acquisition of a Foreign Subsidiary by
any Loan Party, the Borrower shall, and shall cause the applicable Loan Party and such
Foreign Subsidiary to, at the Borrower’s expense, (i) duly execute and deliver to the
Administrative Agent a Pledge Agreement or such other document applicable under applicable
law as the Administrative Agent shall deem necessary or desirable for the collateral pledge
of and perfection of the Equity Interests of such Foreign Subsidiary, (ii) deliver to the
Administrative Agent all certificates representing the Equity Interests pledged to the
Administrative Agent and the Lenders pursuant to the



50









 







Pledge Agreement, accompanied by
instruments of transfer and undated stock powers endorsed in blank, for certificated Equity
Interests, (iii) deliver to the Administrative Agent documents of the types referred to in
Section 4.1(d) through and including Section 4.1(g), and any other documents
and instruments requested by the Administrative Agent, including favorable opinions of
counsel to the Borrower and such Subsidiary (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in
clause (i)), all in form, content and scope reasonably satisfactory to the
Administrative Agent, (iv) taking such additional actions as the Administrative Agent may
consider necessary or desirable under applicable law to perfect the Lien of the
Administrative Agent in such Equity Interests. The Loan Parties will pledge to the
Administrative Agent, for the benefit of the Lenders and the Administrative Agent, all the
issued and outstanding Equity Interests of each Foreign Subsidiary, except, to the extent
such pledge of the Equity Interest of any Foreign Subsidiary that qualifies as a controlled
foreign corporation within the meaning of Section 951 of the Code would result in any
material adverse tax consequence or duty, in which case, the Loan Parties will pledge to the
Administrative Agent, for the benefit of the Lenders and the Administrative Agent, 66% of
the voting Equity Interests and 100% of the non-voting Equity Interests of each such Foreign
Subsidiary.




          SECTION 5.10. Amendment Agreement No. 1 Post-Closing Obligations. The Borrower
hereby covenants and agrees to execute and/or deliver (or cause the execution and/or delivery of)
each of the following items to the Administrative Agent by the dates identified below (unless
otherwise extended or waived in a written agreement by the Administrative Agent in its sole
discretion):




          (a) On or before February 13, 2009, a legal opinion addressed to the Administrative
Agent and the Lenders from local counsel to GSBC Ohio Corporation in respect of GSBC Ohio
Corporation’s execution and delivery of the Guaranty and the other Collateral Documents and
such other matters as reasonably requested by the Administrative Agent, in form, scope and
substance satisfactory to the Administrative Agent.




          (b) On or before February 13, 2009, stock certificates from each of the first-tier
Foreign Subsidiaries evidencing the Equity Interests of the Foreign Subsidiaries pledged to
the Administrative Agent and the Lenders, together with transfer powers duly executed in
blank, each in form and substance satisfactory to the Administrative Agent.




          (c) On or before February 13, 2009, a certificate of foreign qualification from the
Commonwealth of Virginia certifying that the Borrower has authority to transact business in
the Commonwealth of Virginia, such certificate in form and substance satisfactory to the
Administrative Agent and its counsel.




          (d) On or before February 13, 2009, a certificate of property insurance evidencing
insurance policies of the Borrower and the Domestic Subsidiaries, and listing the
Administrative Agent as lenders loss payee, such certificate to be in form and substance
satisfactory to the Administrative Agent and its counsel.



51









 






          (e) On or before February 16, 2009, account control agreements executed by any bank
with which the Loan Parties have any deposit or securities accounts, the applicable Loan
Parties, and the Administrative Agent, all in form and substance satisfactory to the
Administrative Agent and its counsel.




          (f) On or before February 19, 2009, binding insurance endorsements satisfactory to the
Administrative Agent listing the Administrative Agent as additional insured with respect to
liability insurance and as lender loss payee with respect to property insurance.




          (g) On or before February 19, 2009, evidence satisfactory to the Administrative Agent
that the appropriate filing has been made with the United States Patent and Trademark Office
demonstrating the merger of Total Research Corporation into the Borrower and that the
Borrower owns of record (with a clean chain of ownership title) the trademark “COMPASS”
(Reg. No. 2021612/Reg. Date December 10, 1996).




          (h) On or before February 26, 2009, all documentation necessary or desirable in the
Administrative Agent’s reasonable determination to be executed or delivered under the laws
of the United Kingdom, France, Germany, Canada and Hong Kong in connection with the pledge
of the Equity Interests of the Foreign Subsidiaries, together with legal opinions relating
thereto and such other documents reasonably requested by the Administrative Agent in
connection therewith, all in form and substance satisfactory to the Administrative Agent and
its counsel.




          (i) On or before February 26, 2009, deliver evidence satisfactory to the Administrative
Agent that the tax lien filed by the Los Angeles County Tax Collector, with certificate
number 03322-15134 against the Borrower has been released and a termination statement filed
with the appropriate governmental authorities to evidence the release of such tax lien.




          (j) On or before February 26, 2009, evidence satisfactory to the Administrative Agent
that Summit Bank has released its security interest in the trademark “COMPASS” (Reg. No.
2021612/Reg. Date December 10, 1996) and that the appropriate filing has been made with the
United States Patent and Trademark Office demonstrating release of such security interest on
record.




          (k) On or before February 26, 2009, evidence satisfactory to the Administrative Agent
that (i) United Jersey Bank/Central, N.A. has released its security interests in the
following trademarks: (v) “EQUITREND” (Reg. No. 1606674/Reg. Date July 17, 1990); (w) “PEMS”
(Reg. No. 1532299/Reg. Date March 28, 1989); (x) “BRANDPOWER” (Reg. No. 1542831/Reg. Date
June 6, 1989); (y) “PREDICTIVE SEGMENTATION” (Reg. No. 1583886/Reg. Date February 20, 1990);
and (z) “TOTAL RESEARCH CORPORATION (and Design)” (Reg. No. 1595666/Reg. Date May 8, 1990);
and (ii) the appropriate filing has been made with the United States Patent and Trademark
Office demonstrating release of such security interests.



52









 





ARTICLE VI.

NEGATIVE COVENANTS




     Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in cash in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants
and agrees with the Lenders that:




          SECTION 6.1. Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:




          (a) Indebtedness created hereunder;




          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.1 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;




          (c) unsecured Indebtedness of (i) a Loan Party owed to another Loan Party,
provided that (x) all such Indebtedness is evidenced by promissory notes and
all such notes shall be subject to a Lien in favor of the Administrative Agent pursuant to
the Collateral Documents and (y) all such Indebtedness shall be expressly subordinated in
right of payment to the full and final payment in full in cash of the Obligations pursuant
to a subordination agreement or the terms of the applicable promissory notes that in each
such case shall be satisfactory to the Administrative Agent; (ii) a Loan Party owed to a
Subsidiary not a Loan Party hereunder, provided that all such Indebtedness
shall be subordinated in right of payment to the full and final payment in full in cash of
the Obligations pursuant to a subordination agreement or the terms of the applicable
promissory notes that in each such case shall be satisfactory to the Administrative Agent;
(iii) Harris Decima Inc., a corporation formed under the laws of the Province of Ontario,
Canada, owed to the Borrower in an aggregate principal amount not to exceed $1,542,875 at
any time, (iv) Marketshare Limited, a company formed under the laws of Hong Kong, and
Marketshare Pte., Ltd., a company formed under the laws of Singapore, owed to the Borrower
in an aggregate principal amount not to exceed $1,209,522 at any time and (v) other than as
expressly provided for herein, a Subsidiary not a Loan Party hereunder owed to a Loan Party,
provided that the aggregate principal amount of all such Indebtedness shall not
exceed $250,000 at any time;




          (d) Guarantees by (i) the Borrower of any Indebtedness of any Loan Party and (ii) any
Subsidiary of the Borrower of Indebtedness of the Borrower;




          (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capitalized Lease
Obligations and Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i) such Indebtedness is incurred prior to
or within 90 days after such acquisition or the



53









 







completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness permitted by this
clause (e) shall not exceed $2,000,000 at any time outstanding; and




          (f) other unsecured Indebtedness incurred in the ordinary course of business in an
aggregate principal amount not to exceed $250,000 at any time outstanding.




          SECTION 6.2. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:




          (a) Permitted Encumbrances;




          (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.2; provided that (i) such Lien shall
not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




          (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




          (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.1, (ii) such security interests and
the Indebtedness secured thereby are incurred prior to or within 90 days after such
acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary; and




          (e) Liens created pursuant to any Loan Document in favor of the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent.




          SECTION 6.3. Fundamental Changes; Line of Business. (a) The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or



54









 







otherwise Dispose
of (in one transaction or in a series of transactions) all or any substantial part of its assets,
or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower
is the surviving entity, (ii) any Subsidiary may merge into any Subsidiary in a transaction in
which the surviving entity is a Subsidiary, provided that in the event any Subsidiary to
such merger is Loan Party, such Subsidiary that is a Loan Party shall be the surviving entity,
(iii) any Subsidiary that is a Loan Party may sell, transfer, lease or otherwise Dispose of its
assets to the Borrower or to another Subsidiary that is a Loan Party, (iv) any Subsidiary that is
not a Loan Party may sell, transfer, lease or otherwise Dispose of its assets to another
Subsidiary that is not a Loan Party, (v) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.4.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to
any material extent in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.




          SECTION 6.4. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or
a series of transactions) any assets of any other Person constituting a business unit, except:




          (a) Permitted Investments;




          (b) Investments by the Borrower in the capital stock of (i) any Loan Party and (ii) any
Subsidiary that is not a Loan Party to the extent permitted under Section 6.1(c)(v);




          (c) Investments in Indebtedness permitted under Section 6.1(c); and




          (d) Guarantees constituting Indebtedness permitted by Section 6.1.




          SECTION 6.5. Swap Agreements. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to
hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than
those in respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap
Agreements entered into in order to effectively cap, collar or exchange interest rates



55









 







(from
fixed to floating rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Borrower or any Subsidiary.




          SECTION 6.6. Restricted Payments. The Borrower will not, and will not permit any
of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests and (c) so long as no
Default or Event of Default shall then be continuing or would result therefrom, the Borrower may
make non-cash Restricted Payments in the form of non-redeemable Equity Interests pursuant to and
in accordance with stock option plans and other benefit plans for management or employees of the
Borrower and its Subsidiaries in existence as of the Effective Date.




          SECTION 6.7. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions that would be obtainable at the time by the Borrower or such
Subsidiary in a comparable arm’s length transaction between or among Persons that are not
Affiliates, (b) transactions between or among the Borrower and its wholly-owned Subsidiaries not
involving any other Affiliate so long as such transactions are on fair and reasonable terms
substantially similar to those that would be obtainable at the time by the Borrower or such
Subsidiary in a comparable arm’s length transaction between or among Persons that are not
Affiliates of one another and (c) any Restricted Payment permitted by Section 6.6.




          SECTION 6.8. Restrictive Agreements. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or
any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions
and conditions imposed by law or by this Agreement, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause (a) of
the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (iv) clause (a) of the foregoing
shall not apply to customary provisions in leases and other contracts restricting the assignment
thereof.



56









 






          SECTION 6.9. Financial Covenants.




          (a) Consolidated Total Leverage Ratio. The Borrower will not permit the
Consolidated Total Leverage Ratio as of the end of any Measurement Period of the Borrower to
be greater than 2.50 to 1.00.




          (b) Consolidated Interest Coverage Ratio. The Borrower will not permit the
Consolidated Interest Coverage Ratio as of the end of any Measurement Period of the Borrower
to be less than 3.00 to 1.00.




          SECTION 6.10. Capital Expenditures. The Borrower will not, and will not permit any
of its Subsidiaries to, make or become legally obligated to make Capital Expenditures in an
amount in the aggregate for the Borrower and it Subsidiaries during each fiscal year exceeding
$7,000,000.




          SECTION 6.11. Accounting Changes. The Borrower will not, and will not permit any
of its Subsidiaries to, make any change in (a) accounting policies or reporting practices, except
as required by GAAP, or (b) fiscal year.



ARTICLE VII.

EVENTS OF DEFAULT





          SECTION 7.1. Events of Default. If any of the following events (“Events of
Default”) shall occur:




          (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable
under this Agreement, when and as the same shall become due and payable;




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary in or in connection with this Agreement, any other Loan Document or any
amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any
report, certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement, any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially
incorrect when made or deemed made;




          (d) (i) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.2, Section 5.3 (with respect to the
Borrower’s existence), Section 5.5 (with respect to maintenance of insurance),
Section 5.6, Section



57









 







5.8, Section 5.9 or Section 5.10 or in
Article VI, (ii) any Guarantor shall fail to perform or observe any term, covenant
or agreement contained in the Guaranty or (iii) the Borrower or any Loan Party fails to
perform or observe any term, covenant or agreement contained in any Collateral Document to
which it is a party after, to the extent expressly provided in such Collateral Document,
receipt of any notice required to be provided therein or grace period permitted therein.




          (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clauses (a), (b)
or (d) of this Article), and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the Borrower (which notice
will be given at the request of any Lender);




          (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable (after the expiration of any applicable grace period);




          (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing shall be
entered;




          (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the foregoing;



58









 






          (j) the Borrower or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;




          (k) one or more judgments for the payment of money in an aggregate amount in excess of
$100,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;




          (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;




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




          (n) any Collateral Document or any Lien granted thereunder shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective or cease to be the
legally valid, binding and enforceable obligation of any Loan Party or any of its
Subsidiaries party thereto, or any Loan Party or any other Person shall, directly or
indirectly, contest or limit in any manner such effectiveness, validity, binding nature or
enforceability; or, except as permitted under any Collateral Document, any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected Lien; or




          (o) a Change in Control shall occur;


then, and in every such event (other than an event with respect to the Borrower described in
clause (h) or clause (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment, 

59









 






demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or clause (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower. The Lenders and the Administrative Agent
shall have all other rights and remedies available at law or in equity or pursuant to any Loan
Documents including, without limitation, the rights and remedies of a secured party under the UCC.
Such rights and remedies include the rights to (i) take possession of any Collateral; (ii) require
the Loan Parties to assemble Collateral, at the Borrower’s expense, and make it available to the
Administrative Agent at a place designated by such Administrative Agent; (iii) enter any premises
where Collateral is located and store Collateral on such premises until sold (and if the premises
are owned or leased by a Loan Party, the Loan Parties agree not to charge for such storage); and
(iv) sell or otherwise dispose of any Collateral in its then condition at public or private sale,
with such notice as may be acquired by law, at such locations, all as the Administrative Agent, in
its discretion, deems advisable. The Administrative Agent shall have the right to conduct such
sales on any Loan Party’s premises, without charge. The Administrative Agent shall have the right
to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination thereof,
and the Administrative Agent may purchase any Collateral at public or, if permitted by law, private
sale, and, in lieu of actual payment of the purchase price, may set off the amount of such price
against the Obligations.





          SECTION 7.2. Application of Payments. After the exercise of remedies provided for
in Section 7.1 (or after the Loans have automatically become or have been declared
immediately due and payable), any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:




          (a) First, to the payment of, or (as the case may be) the reimbursement of the
Administrative Agent for or in respect of all reasonable costs, expenses, disbursements and
losses which shall have been incurred or sustained by the Administrative Agent in connection
with the collection of such monies by the Administrative Agent, for the exercise, protection
or enforcement by the Administrative Agent of all or any of the rights, remedies, powers and
privileges of the Administrative Agent under this Credit Agreement or any of the other Loan
Documents or in respect of the Securities Collateral or in support of any provision of
adequate indemnity to the Administrative Agent against any taxes or
liens which by law shall have, or may have, priority over the rights of the
Administrative Agent to such monies;




          (b) Second, to the payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and Letter of Credit
fees) payable to the Administrative Agent and the Lenders and the Issuing Bank (including
fees, charges and disbursements of counsel to the respective Administrative Agent, the
Lenders and the Issuing Bank (including fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the Issuing Bank), ratably among them
in proportion to the respective amounts described in this clause Second payable to
them;




          (c) Third, to the payment of that portion of the Obligations constituting
interest on the Loans, LC Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time, and accrued and unpaid Letter of Credit fees, ratably



60









 







among the
Lenders and the Issuing Bank in proportion to the respective amounts described in this
clause Third payable to them;




          (d) Fourth, to (i) the payment of that portion of the Obligations constituting
unpaid principal of the Loans, (ii) payment of breakage, termination or other amounts owing
in respect of any Swap Agreement between the Borrower and any Lender or any Affiliate of any
Lender and (iii) the Administrative Agent, for the account of the Issuing Bank, to cash
collateralize the aggregate undrawn amount of Letters of Credit in an amount equal to 105%
of such undrawn amount, ratably among such parties in proportion to the respective amounts
described in this clause Fourth payable to them; and




          (e) Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full in cash, to the Borrower or as otherwise required by applicable
law.



ARTICLE VIII.

THE ADMINISTRATIVE AGENT; ETC.




     Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.



     The Administrative Agent shall also act as the “collateral agent” under the Loan Documents,
and each of the Lenders and the Issuing Bank hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the Issuing Bank for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent 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
Administrative Agent), shall be entitled to the benefits
of all provisions of this Article IX and Article X, as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full
herein with respect thereto.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary



61









 







rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.2), and (c) except as expressly
set forth herein, the Administrative Agent shall not 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
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.2) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative 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 it in accordance with the advice of any such counsel, accountants
or experts.



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



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the



62









 







Issuing Bank, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.3 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.



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



     Anything herein to the contrary notwithstanding, the Syndication Agent listed on the cover
page hereof shall not have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity a Lender hereunder.



ARTICLE IX.

MISCELLANEOUS





          SECTION 9.1. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (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 telecopy, as
follows:




          (i) if to the Borrower, to it at Harris Interactive Inc., 60 Corporate Woods,
Rochester, New York 14623, Attention of Chief Financial Officer (Telecopy No. (585)
273-0510);




          (ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency
Services Group, 10 South Dearborn Street, 7th Floor, Chicago, Illinois 60605,
Attention of Muoy Lim (Telecopy No. (312) 385-7103, with a copy to JPMorgan Chase
Bank, National Association, Middle Market Banking, 1 Chase Square, Floor 9,
Rochester, NY 14643, Attention of James Stanbrough (Telecopy No. (585) 797-1860);



63









 






          (iii) if to the Issuing Bank, to it 10 South Dearborn Street, 7th Floor,
Chicago, Illinois 60605, Attention of Muoy Lim (Telecopy No. (312) 385-7103; and




          (iv) if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.




          (b) Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender. 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.




          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.




          SECTION 9.2. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of this Agreement or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a Loan or issuance
of a Letter of Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge
of such Default at the time.




          (b) No amendment, waiver or modification of any provision of this Agreement or any
other Loan Document shall be effective except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the written consent
of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date of



64









 







expiration of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender or (vi) change the
definition of “Required Revolving Credit Lenders” without the written consent of each
Revolving Credit Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank hereunder without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be.




          SECTION 9.3. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers of the
provisions hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, and in the administration of and actions relating to any Collateral,
including actions taken to perfect or maintain priority of the Administrative Agent’s Lien on any
Collateral, to maintain any insurance or to verify Collateral, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions contemplated hereby, (ii) any
Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any



65









 







of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful misconduct
of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent or the Issuing Bank under paragraph (a) or paragraph
(b) of this Section, each Lender severally agrees to pay to the Administrative Agent or
the Issuing Bank, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as such.




          (d) To the 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 Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than five (5)
Business Days after written demand therefor.




          SECTION 9.4. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans at the



66









 







time
owing to it) with the prior written consent (such consent not to be unreasonably withheld)
of:




          (A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee;




          (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term A Loan or a Term B Loan to a Lender, an Affiliate of a
Lender or an Approved Fund; and




          (C) the Issuing Bank, provided that no consent of the Issuing
Bank shall be required for an assignment of all or any portion of a Term A
Loan or a Term B Loan.




          (ii) Assignments shall be subject to the following additional conditions:




          (A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 or,
in the case of a Term A Loan or a Term B Loan, $1,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, provided
that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;




          (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations
under this Agreement, provided that this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans; 




          (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and




          (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information


67








 









about the
Borrower and its related parties or its securities) will be made available
and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state
securities laws.




For the purposes of this Section 9.4(b), the term “Approved Fund”
has the following meaning:




“Approved Fund” means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is administered
or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 9.3). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
Section 9.4 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.




          (iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices 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 Commitment of, and principal amount of the Loans
and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender



68









 







hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register; provided that if
either the assigning Lender or the assignee shall have failed to make any payment
required to be made by it pursuant to Section 2.5(d) or (e),
2.6(b), 2.17(d) or 9.3(c), the Administrative Agent shall
have no obligation to accept such Assignment and Assumption and record the
information therein in the Register unless and until such payment shall have been
made in full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register
as provided in this paragraph.




          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent
or the Issuing Bank, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver described in the first
proviso to Section 9.2(b) that affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of
Section 9.8 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17(c) as though it were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under
Section 2.14 or Section 2.16 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. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.



69









 






          (d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.




          SECTION 9.5. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank
or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 9.3 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision hereof.




          SECTION 9.6. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and any separate letter agreements with respect to fees payable
to the Administrative Agent 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. Except as provided in Section 4.1, this
Agreement shall become effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement.




          SECTION 9.7. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such provision in any
other jurisdiction.



70









 






          SECTION 9.8. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other obligations
at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.




          SECTION 9.9. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the internal law of the State of
New York (including Section 5-1401 and Section 5-1402 of the General Obligations laws of the
State of New York).




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District
of New York, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby 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
or, to the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any jurisdiction.




          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement 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 law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.




          (d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.1. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner permitted by
law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING




71











 






DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. (a) Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other advisors (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), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, provided, that to the extent reasonably
practicable and not prohibited by applicable law, regulation, subpoena or similar legal process,
prior telephonic notice is given to the Borrower of such intended disclosure (it being agreed by
the parties that the failure by the Administrative Agent, the Issuing Bank or any Lender to give
such prior telephonic notice shall not impair the effectiveness of this Agreement or be deemed a
breach of this Section 9.12), (iv) to any other party to this Agreement, (v) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section, (X) to any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or (Y) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (vii) with the consent of
the Borrower or (viii) 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, the
Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, “Information” means all information received from the
Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same



72









 







degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




          (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a)
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND
CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL
NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES
LAWS.




          (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS
AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION ABOUT THE BORROWER AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE
LAW.




          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such Loan under applicable law
(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest payable in respect of
such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.




          SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Act.



***Signature Page Follows***




73









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	HARRIS INTERACTIVE INC., as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — Borrower]




 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL 
ASSOCIATION, as
Administrative Agent,	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — Administrative Agent]




 









 






	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL 
ASSOCIATION, as a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — JPMorgan Chase Bank, National Association]




 









 






	 	 	 	 	 	 	 
	 	 	MANUFACTURERS AND TRADERS TRUST 
COMPANY, as a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — Manufacturers and Traders Trust Company]




 









 






	 	 	 	 	 	 	 
	 	 	RBS CITIZENS, NATIONAL ASSOCIATION, 
as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — RBS Citizens, National Association]




 









 





	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — National City Bank]




 









 





	 	 	 	 	 	 	 
	 	 	HSBC BANK USA, NATIONAL 
ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






[Signature page to Credit Agreement — HSBC Bank USA, National Association]





 









 








Schedule 2.1




Commitments of Lenders




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	Revolving	 	 	 	 	 	Percentage of	 	 	 	 	 	Percentage of
	 	 	Credit	 	Credit	 	Term A	 	Term A	 	Term B	 	Term B
	Lender	 	Commitment	 	Commitments	 	Commitment	 	Commitments	 	Commitment	 	Commitments
	JPMorgan Chase Bank, National Association
	 	$	3,500,000	 	 	 	35.00	%	 	$	3,150,000	 	 	 	35.00	%	 	$	5,939,062.50	 	 	 	35.00	%
	Manufacturers and Traders Trust Company
	 	$	2,500,000	 	 	 	25.00	%	 	$	2,250,000	 	 	 	25.00	%	 	$	4,242,187.50	 	 	 	25.00	%
	RBS Citizens, National Association
	 	$	1,500,000	 	 	 	15.00	%	 	$	1,350,000	 	 	 	15.00	%	 	$	2,545,312.50	 	 	 	15.00	%
	National City Bank
	 	$	1,500,000	 	 	 	15.00	%	 	$	1,350,000	 	 	 	15.00	%	 	$	2,545,312.50	 	 	 	15.00	%
	HSBC Bank USA, National Association
	 	$	1,000,000	 	 	 	10.00	%	 	$	900,000	 	 	 	10.00	%	 	$	1,696,875.00	 	 	 	10.00	%
	Total:
	 	$	10,000,000	 	 	 	100.00	%	 	$	9,000,000	 	 	 	100.00	%	 	$	16,968,750.00	 	 	 	100.00	%







 









 








Annex II




Schedule 2.1




Commitments of Lenders




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	Revolving	 	 	 	 	 	Percentage of	 	 	 	 	 	Percentage of
	 	 	Credit	 	Credit	 	Term A	 	Term A	 	Term B	 	Term B
	Lender	 	Commitment	 	Commitments	 	Commitment	 	Commitments	 	Commitment	 	Commitments
	JPMorgan Chase Bank, National Association
	 	$	3,500,000	 	 	 	35.00	%	 	$	3,150,000	 	 	 	35.00	%	 	$	5,939,062.50	 	 	 	35.00	%
	Manufacturers and Traders Trust Company
	 	$	2,500,000	 	 	 	25.00	%	 	$	2,250,000	 	 	 	25.00	%	 	$	4,242,187.50	 	 	 	25.00	%
	RBS Citizens, National Association
	 	$	1,500,000	 	 	 	15.00	%	 	$	1,350,000	 	 	 	15.00	%	 	$	2,545,312.50	 	 	 	15.00	%
	National City Bank
	 	$	1,500,000	 	 	 	15.00	%	 	$	1,350,000	 	 	 	15.00	%	 	$	2,545,312.50	 	 	 	15.00	%
	HSBC Bank USA, National Association
	 	$	1,000,000	 	 	 	10.00	%	 	$	900,000	 	 	 	10.00	%	 	$	1,696,875.00	 	 	 	10.00	%
	Total:
	 	$	10,000,000	 	 	 	100.00	%	 	$	9,000,000	 	 	 	100.00	%	 	$	16,968,750.00	 	 	 	100.00	%






 









 






Schedule 3.11

SUBSIDIARIES




Harris/Decima Inc. (formed in Ontario, Canada)




GSBC Ohio Corporation (formed in Ohio)




Harris Interactive Asia Limited (formed in Hong Kong)




Harris Interactive Asia, LLC (formed in Delaware)




Harris Interactive International Inc. (formed in Delaware)




Harris Interactive UK Limited (formed in the United Kingdom)




HI UK Holdings Limited (formed in the United Kingdom)




Louis Harris & Associates, Inc. (formed in New York)




Marketshare Limited (formed in Hong Kong)




Marketshare Pte. Ltd. (formed in Singapore)




Harris Interactive AG (formed in Germany)




Harris Interactive SAS (formed in France)




Opinion Search Inc. (formed in Ontario, Canada)




Romtec UK Limited (formed in the United Kingdom)




Teligen UK Limited (formed in the United Kingdom)




The Wirthlin Group International, L.L.C. (formed in Delaware)




Wirthlin Europe Limited (formed in the United Kingdom)




Wirthlin UK Limited (formed in the United Kingdom)




Wirthlin Worldwide, LLC (formed in Delaware)




2144798 Ontario Inc. (formed in Canada)





 












 





Annex III




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit and
guarantees included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.




	1.	 	Assignor:                                                                   
	 
	2.	 	Assignee:                                                                   

               
               
               [and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	3.	 	Borrower(s): Harris Interactive Inc.
	 
	4.	 	Administrative Agent: JPMorgan Chase Bank, National Association,
as the administrative agent under the Credit Agreement







 




			
	1	 	Select as applicable.





 









 







			
	5.          Credit Agreement:	 	The Credit Agreement dated as of September 21, 2007 among Harris Interactive Inc., the Lenders parties thereto, JPMorgan Chase Bank, National Association, as Administrative Agent, and the other agents parties thereto






			
	6.          Assigned Interest:	 	 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Percentage Assigned
	 	 	Commitment/Loans	 	Commitment/Loans	 	of
	Facility Assigned2	 	for all Lenders	 	Assigned	 	Commitment/Loans3
	 

	 	 	$	 	 	 	$	 	 	 	%	 
	 

	 	 	$	 	 	 	$	 	 	 	%	 
	 

	 	 	$	 	 	 	$	 	 	 	%	 






     Effective Date:                                                              , 20   
                  [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



     The Assignee agrees to deliver to the Administrative Agent a completed Administrative
Questionnaire in which the Assignee designates one or more Credit Contacts to whom all
syndicate-level information (which may contain material non-public information about the Borrower
and its Related Parties or their respective securities) will be made available and who may receive
such information in accordance with the Assignee’s compliance procedures and applicable laws,
including Federal and state securities laws.





 




			
	2	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Commitment,” “Term A Commitment,” “Term B
Commitment,” etc.)
	 
	3	 	Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.





 









 





     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE

[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 





[Consented to and]4 Accepted:




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as

Administrative Agent




	 	 	 	 	 
	By
	 	 	 	 
	Title:

	 	 

	 	 
	 
	 	 	 	 
	[Consented to:]5	 	 
	 
	 	 	 	 
	HARRIS INTERACTIVE INC.	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	Title:

	 	 

	 	 








 




			
	4	 	To be added only if the consent of the Administrative Agent
is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the Borrower and/or
other parties (e.g. Issuing Bank) is required by the terms of the Credit
Agreement.





 









 





ANNEX 1




CREDIT AGREEMENT DATED AS OF SEPTEMBER 21, 2007, AMONG

HARRIS INTERACTIVE INC., AS BORROWER, THE LENDERS PARTY

THERETO FROM TIME TO TIME, AND JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT




STANDARD TERMS AND CONDITIONS FOR 

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a



 









 







Foreign Lender6, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.





 




			
	6	 	The concept of “Foreign Lender” should be conformed to the
section in the Credit Agreement governing withholding taxes and gross-up.




 









 










Annex IV


TERM B NOTE




			
	 	 	 
	$                                        
	 	                                        ,                     
	 	 	 





     FOR VALUE RECEIVED, the undersigned Harris Interactive Inc., a Delaware corporation, (the
“Borrower”), hereby promises to pay to the order of [                    ] (the “Lender”)
at the Lender’s office at [                                        ]:




(a) prior to or on the Maturity Date, the principal amount of [                                        ] DOLLARS
($                                        ), evidencing the Term B Loan made by the Lender to the Borrower pursuant to the
Credit Agreement dated as of September 21, 2007 (as amended and in effect from time to time, the
“Credit Agreement”), by and among the Borrower, the Lenders party thereto, and
JPMorgan Chase Bank, National Association, as Administrative Agent;




(b) the principal outstanding hereunder from time to time at the times provided in the Credit
Agreement; and




(c) interest from the date hereof on the principal amount from time to time outstanding to and
including the maturity hereof at the rates and terms and in all cases in accordance with the
terms of the Credit Agreement.



     This Term B Note evidences borrowings under and has been issued by the Borrower in accordance
with the terms of the Credit Agreement. The Lender and any holder hereof is entitled to the
benefits of the Credit Agreement and the other Loan Documents, and may enforce the agreements of
the Borrower contained therein, and any holder hereof may exercise the respective remedies provided
for thereby or otherwise available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Term B Note and not otherwise defined herein shall
have the same meanings herein as in the Credit Agreement.



     The Borrower irrevocably authorizes the Lender to make or cause to be made, at the time of
receipt of any payment of principal of this Term B Note, an appropriate notation on the grid
attached to this Term B Note, or the continuation of such grid, or any other similar record,
including computer records, reflecting the receipt of such payment. The outstanding amount of the
Term B Loan set forth on the grid attached to this Term B Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by the Lender with respect to
the Term B Loan shall be prima facie evidence of the principal amount of the Term B
Loan owing and unpaid to the Lender, but the failure to record, or any error in so recording, any
such amount on any such grid, continuation or other record shall not limit or otherwise affect the
obligation of the Borrower hereunder or under the Credit



 









 







Agreement to make payments of principal of and interest on this Term B Note when due.



     The Borrower has the right in certain circumstances and the obligation under certain other
circumstances to prepay the whole or part of the principal of this Term B Note on the terms and
conditions specified in the Credit Agreement.



     If any one or more of the Events of Default shall occur, the entire unpaid principal amount of
this Term B Note and all of the unpaid interest accrued thereon may become or be declared due and
payable in the manner and with the effect provided in the Credit Agreement.



     No delay or omission on the part of the Lender or any holder hereof in exercising any right
hereunder shall operate as a waiver of such right or of any other rights of the Lender or such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of
the same or any other right on any future occasion.



     The Borrower and every endorser and guarantor of this Term B Note or the obligation
represented hereby waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of this Term B Note,
and assents to any extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release of any other party
or person primarily or secondarily liable.



     THIS TERM B NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL PURPOSES BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK). THE
BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS TERM B NOTE MAY BE BROUGHT IN THE SUPREME
COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT OF
THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON
THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN §9.1 OF THE CREDIT AGREEMENT. THE BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.



 









 





     IN WITNESS WHEREOF, the undersigned has caused this TermB Note to be signed in its corporate
name and its corporate seal to be impressed thereon by its duly authorized officer as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	HARRIS INTERACTIVE INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	Balance of	 	 
	 	 	Amount	 	Principal Paid	 	Principal	 	Notation
	Date	 	of Loan	 	or Prepaid	 	Unpaid	 	Made By:
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 





 









 





- 2 -




Annex V




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                                         ,                     





			
	To:	 	JPMorgan Chase Bank, National Association, as Administrative Agent





Ladies and Gentlemen:



     Reference is made to (a) that certain Credit Agreement, dated as of September 21, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Credit Agreement;” the terms defined therein being used herein as therein
defined), among Harris Interactive Inc., a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, and JPMorgan Chase Bank, National Association, as
administrative agent (the “Administrative Agent”), and (b) that certain Waiver and
Amendment Agreement No. 1 to that certain Credit Agreement, dated as of February 5, 2009, by and
among the Borrower, the Administrative Agent and the Lenders signatory thereto.



     The undersigned Financial Officer7 hereby certifies as of the date hereof that he/she
is the                                                              of the Borrower, and that, as such, he/she is authorized
to execute and deliver this Certificate to the Administrative Agent on the behalf of the Borrower,
and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     Attached hereto as Schedule 1 are the year-end audited financial statements required
by Section 5.1(a) of the Credit Agreement, including Borrower’s audited consolidated balance sheet
and related statements of operations, stockholders’ equity and cash flows as of the end of and for
such year ended as of the above date, setting forth in each case in comparative form the figures
for the previous fiscal year. Such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 5.1(b)(i) of the Credit Agreement, including Borrower’s consolidated balance sheet and
related statements of operations, stockholders’ equity and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the





 




			
	7	 	This certificate should be from the chief financial
officer, principal accounting officer, treasurer or controller of the Borrower.





 









 





- 3 -



fiscal year ended
as of the above date, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year. Such financial statements fairly present in all material respects the
financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes.




[Use following paragraph 1 for fiscal month-end financial statements]




     Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 5.1(b)(ii) of the Credit Agreement, including management prepared consolidated and
consolidating balance sheets, and related statements of operations, stockholder’s equity and cash
flows of the Borrower as of the end of and for such fiscal month and the then elapsed portion of
the fiscal year, setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal
year; all certified by one of its Financial Officers as presenting fairly in all material respects
the financial condition of the Borrower and its Subsidiaries on a consolidated and consolidating
basis, subject to normal quarterly true-ups and adjustments, and as being prepared in good faith;



     The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



     A review of the activities of the Borrower and its Subsidiaries during such fiscal period has
been made under the supervision of the undersigned with a view to determining whether during such
fiscal period the Borrower and its Subsidiaries performed and observed all their Obligations under
the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Borrower and each of
its Subsidiaries performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default has occurred and is continuing.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default, its nature and status, and any action taken or proposed to be taken
with respect thereto:]



     1. The representations and warranties of the Borrower contained in Article III of the
Credit Agreement and all representations and warranties of any Loan Party that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and except that for



 









 





- 4 -



purposes of
this Compliance Certificate, the representations and warranties contained in Section 3.4(a)
of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b)(i), respectively, of Section 5.1 of the Credit Agreement, including,
if applicable, the statements in connection with which this Compliance Certificate is delivered.




     2 The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     3. [There has been no change in GAAP or in the application thereof since June 30, 2006] or
[There has been a change in GAAP or in the application thereof since June 30, 2006 that could
potentially impact the Borrower, and the effect of such change on the attached financial statements
is:                    .]



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                         ,                                         .



	 	 	 	 	 	 	 
	 	 	HARRIS INTERACTIVE INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 





- 5 -


For the Month/Quarter/Year ended                                         ,                      (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 
	I.   Section 6.9(a) — Consolidated Total Leverage Ratio.

	 	 	 	 
	 
	 	 	 	 
	A.   Consolidated Funded Indebtedness (other than in respect of Indebtedness constituting ordinary course
settlement exposure secured by a debenture that constitutes a Permitted Lien) for the Borrower and its
Subsidiaries on a consolidated basis as of the last day of the most recently ended Measurement Period:

	 	 	 	 
	 
	 	 	 	 
	1.   The outstanding principal amount of all obligations,
whether current or long-term, for borrowed money
(including Obligations under the Credit Agreement)
and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	2.   All purchase money Indebtedness (not including
Earn-Out Obligations):

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	3.   All obligations arising under letters of credit
(including standby and commercial letters of credit
and LC Exposure), banker’s acceptances, bank
guaranties, surety bonds and similar instruments:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	4.   All obligations in respect of the deferred purchase
price of property or services (other than trade
accounts payable in the ordinary course of business
and Earn-Out Obligations):

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	5.   All Capitalized Lease Obligations:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	6.   Without duplication, all Guarantees with respect to
outstanding Indebtedness of the types specified in
Lines I.A.1 through I.A.5 above of Persons other
than the Borrower or any Subsidiary:

	 	$	 	 
	 
	 	 	 





 









 





- 6 -



	 	 	 	 	 
	7.   All Indebtedness of the types referred to in Lines
I.A.1 through I.A.6 above of any partnership or
joint venture (other than a joint venture that is
itself a corporation or limited liability company)
in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to the Borrower or
such Subsidiary:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	8.   Consolidated Funded Indebtedness (Lines I.A.1 + 2 +
3 + 4 + 5 + 6 + 7)

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B.   Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries on a consolidated basis for such Measurement Period ending on above date:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	1.   Consolidated Net Income for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	To the extent deducted in calculating Consolidated Net Income (and without duplication):
	 	 	 	 
	 
	 	 	 	 
	2.   Consolidated Interest Charges for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	3.   Provision for federal, state, local and foreign
income taxes payable for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	4.   Depreciation and amortization expenses for
Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	5.   Non-cash equity compensation expense accounted for
under SFAS No. 123(R) for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	6.   Non-recurring non-cash expenses reducing
Consolidated Net Income for Measurement Period (or
in any future period):

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	To the extent included in calculating Consolidated Net Income:
	 	 	 	 
	 
	 	 	 	 
	7.   Federal, state, local and foreign income tax credits
for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	8.   Non-cash items increasing Consolidated Net Income
for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	9.   Consolidated Adjusted EBITDA for Measurement Period
(Lines I.B.1 + 2 + 3 + 4 + 5 + 6 – 7 – 8):

	 	$	 	 
	 
	 	 	 





 









 





- 7 -


	 	 	 	 	 
	C.   Consolidated Total Leverage Ratio: (Line I.A.8  ̧ Line I.B.9)

	 	 	___: 1.00	 
	 
	 	 	 	 
	D.   Permitted Maximum Consolidated Total Leverage Ratio:

	 	 	2.50: 1.00	 
	
Compliance: [Yes][No]
	 	 	 	 






 









 





- 8 -


	 	 	 	 	 
	II.   Section 6.9(b) — Consolidated Interest Coverage Ratio.

	 	 	 	 
	 
	 	 	 	 
	A.   Consolidated Adjusted EBITDA for Measurement Period (Line I.B.9)

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B.   Consolidated Interest Charges for Measurement Period:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	C.   Consolidated Interest Coverage Ratio (Line II.A  ̧ Line II.B):

	 	 	____:1.00	 
	 
	 	 	 	 
	C.   Permitted Minimum Consolidated Interest Coverage Ratio:

	 	 	3.00:1.00	 
	 
	 	 	 	 
	Compliance: [Yes][No]
	 	 	 	 
	 
	 	 	 	 
	III.   Section 6.10 — Capital Expenditures.

	 	 	 	 
	 
	 	 	 	 
	A.   Capital Expenditures the Borrower made or is legally obligated to make
for the fiscal year to date period as of the Statement Date:

	 	$	 	 
	 
	 	 	 
	 
	 	 	 	 
	B.   Permitted Capital Expenditures 

	 	$	7,000,000	 
	 
	 	 	 	 
	C.   Line IIIA < Line III.B

	 	[Yes][No]
	 
	 	 	 	 
	Compliance: [Yes][No]
	 	 	 	 







 











 





- 9 -




Annex VI




EXHIBIT G




FORM OF MASTER SECURITIES PLEDGE AGREEMENT




          This MASTER SECURITIES PLEDGE AGREEMENT (this “Agreement”) is made as of                     ,
     , by and among HARRIS INTERACTIVE INC., a Delaware corporation (hereinafter, the
“Borrower”), HARRIS INTERACTIVE INTERNATIONAL INC., a Delaware corporation (“Harris
International”), WIRTHLIN WORLDWIDE, LLC, a Delaware limited liability company
(“Wirthlin Worldwide”), THE WIRTHLIN GROUP INTERNATIONAL, L.L.C., a Delaware
limited liability company (“Wirthlin Group”), LOUIS HARRIS & ASSOCIATES, INC., a
New York corporation (“Louis Harris”), HARRIS INTERACTIVE ASIA, LLC, a Delaware
limited liability company (“Harris Asia”), GSBC OHIO CORPORATION, an Ohio
corporation (“GSBC”) and each other party as shall from time to time become a party hereto
pursuant to Section 24 hereof (each other party, Borrower, Harris International, Wirthlin
Worldwide, Wirthin Group, Louis Harris, Harris Asia and GSBC being hereafter referred to from time
to time, individually, as a “Pledgor” and collectively, as the “Pledgors”), and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as administrative agent (hereinafter, in such capacity,
the “Administrative Agent”) for itself and the other Secured Parties, including the lending
institutions (hereinafter, collectively, the “Lenders”) which are or may become party to
that certain Credit Agreement, dated as of September 21, 2007 (as amended, supplemented, restated,
or otherwise modified and in effect from time to time, the “Credit Agreement”) among the
Borrower, the Lenders party thereto, the Administrative Agent, and J.P. Morgan Securities Inc. as
Sole Bookrunner and Sole Lead Arranger.




          WHEREAS, each Pledgor is the direct legal and beneficial owner of all of the issued and
outstanding Equity Interests of each of the Issuers opposite such Pledgor’s name on Annex
A hereto; and




          WHEREAS, it is a condition precedent to the Lenders’ making of Loans and otherwise extending
credit to and issuing, extending, or renewing Letters of Credit for the benefit of the Borrower
under the Credit Agreement and in connection therewith permitting certain transactions involving
the Pledgors and their respective Subsidiaries thereunder that the Pledgors execute and deliver to
the Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, a
pledge agreement in substantially the form hereof; and









 



 -  10  -



          WHEREAS, each Pledgor wishes to grant pledges and security interests in favor of the
Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, as
herein provided;




          NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:




     1. Pledge of Securities, etc.




     1.1. Pledge of Securities. Each Pledgor hereby pledges, assigns, grants a
security interest in, and delivers to the Administrative Agent, for the benefit of the
Secured Parties and the Administrative Agent, all the right, title and interest of such
Pledgor in and to all of the Equity Interests of the Issuers of every class, including
without limitation the Equity Interests listed on Annex A hereto, whether now owned
or hereafter acquired or arising, and with respect to any Issuer which is a limited
liability company or partnership, (a) all payments or distributions, whether in cash,
property or otherwise, at any time owing or payable to such Pledgor on account of its
interest as a member or partner, as the case may be, in any Issuer or in the nature of a
management, investment banking or other fee paid or payable by any of the Issuer to such
Pledgor, (b) all of such Pledgor’s rights and interests under each of the partnership
agreements or operating agreements, as applicable, including all voting and management
rights and all rights to grant or withhold consents or approvals, (c) all rights of access
and inspection to and use of all books and records, including computer software and
computer software programs, of each of such Issuers, (d) all other rights, interests,
property or claims to which such Pledgor may be entitled in its capacity as a partner or a
member of any Issuer, and (e) all proceeds, income from, increases in and products of any
of the foregoing to be held by the Administrative Agent, for the benefit of the Secured
Parties and the Administrative Agent, subject to the terms and conditions hereinafter set
forth. The certificates for such Equity Interests of every class of the capital stock of
the Issuers, to the extent that such interests are represented by certificates, accompanied
by stock powers or other appropriate instruments of assignment thereof duly executed in
blank by such Pledgor, have been delivered to the Administrative Agent, and each Pledgor
shall have taken all actions as required by applicable law to create and maintain a legal,
valid, and enforceable first priority security interest in the Securities Collateral. The
Pledgors will pledge to the Administrative Agent, for the benefit of the Secured Parties
and the Administrative Agent, all the issued and outstanding Equity Interests of each
Foreign Subsidiary, except, to the extent such pledge of the Equity Interest of any Foreign
Subsidiary that qualifies as a controlled foreign corporation within the meaning of Section
951 of the Code would result in any material adverse tax consequence or duty, in which
case, the applicable Pledgor will pledge to the Administrative Agent, for the benefit of
the









 



 -  11  -



Secured Parties and the Administrative Agent, 66% of the voting Equity Interests and 100% of the
non-voting Equity Interests of each such Foreign Subsidiary.




     1.2. Additional Securities. In case any Pledgor shall acquire any capital
stock or other equity interest of any Issuer or corporation, partnership, limited liability
company or other entity which is the successor of any Issuer, or any securities
exchangeable for or convertible into shares of such capital stock or other equity interest
of any class of any Issuer, by purchase, stock dividend, stock split or otherwise, then
such capital stock or other equity interests shall be subject to the pledge, assignment and
security interest granted to the Administrative Agent, for the benefit of the Secured
Parties and the Administrative Agent, under this Agreement, except, to the extent such
pledge of the Equity Interest of any Foreign Subsidiary that qualifies as a controlled
foreign corporation within the meaning of Section 951 of the Code would result in any
material adverse tax consequence or duty, in which case, the applicable Pledgor will pledge
to the Administrative Agent, for the benefit of the Secured Parties and the Administrative
Agent, 66% of the voting Equity Interests and 100% of the non-voting Equity Interests of
each such Foreign Subsidiary. Such Pledgor shall forthwith deliver to the Administrative
Agent any certificates therefor, accompanied by stock powers or other appropriate
instruments of assignment duly executed by such Pledgor in blank, and shall take all action
necessary or advisable in the reasonable opinion of the Administrative Agent to create and
maintain a legal, valid, and enforceable first priority security interest in such
Securities Collateral under applicable law. Each Pledgor agrees that the Administrative
Agent may from time to time attach as Annex A hereto an updated list of the
shares of capital stock or other equity interests at the time pledged with the
Administrative Agent hereunder.




     1.3. Pledge of Cash Collateral Account. Each Pledgor also hereby pledges,
assigns, grants a security interest in, and delivers to the Administrative Agent, for the
benefit of the Secured Parties and the Administrative Agent, the Cash Collateral Account
and all of the Cash Collateral as such terms are hereinafter defined.




     1.4. Waiver of Certain Partnership Agreement, Operating Agreement or Other
Governing Documents Provisions. Each Pledgor irrevocably waives any and all provisions
of the partnership agreements, operating agreements, memorandum and articles of association
or other applicable agreements of each Issuer (as applicable) that (a) prohibit, restrict,
condition or otherwise affect the grant hereunder of any Lien on any of the Securities
Collateral (as such term is hereinafter defined) or any enforcement action which may be
taken in respect of any such Lien or (b) otherwise conflict with the terms of this
Agreement.



     2. Definitions. The term “Obligations” and all other capitalized terms used herein
without definition shall have the respective meanings provided therefor in the









 



 -  12  -



Credit Agreement.
Terms used herein and not defined in the Credit Agreement or otherwise defined herein that are
defined in the UCC (as defined below) have such defined meanings herein (with terms used in Article
9 controlling over terms used in another Article), unless the context otherwise indicates or
requires, and the following terms shall have the following meanings:




     Cash Collateral. See Section 4.




     Cash Collateral Account. See Section 4.




     Issuers. Shall mean the corporations, limited liability companies, limited
partnerships, general partnerships and any other Person now owned or hereafter acquired
(whether in connection with any recapitalization, reclassification or reorganization of the
capital of any such company or any successors in interest thereto) by any Pledgor,
including, without limitation, the corporations, limited liability companies, limited
partnerships, general partnerships or such other Person listed on Annex A attached
hereto.




     Securities. Includes the shares of stock, membership interests, partnership
interests or other equity interests described in Annex A attached hereto
and any additional shares of stock, membership interests, partnership interests or other
equity interests at the time pledged to the Administrative Agent hereunder and the
interests described in clauses (a)-(e) of Section 1.1 and Section
1.2 of this Agreement.




     Securities Collateral. Equity Interests of the Issuers, including without
limitation the Equity Interests identified on Annex A hereto (which may be amended,
updated or otherwise modified from time to time) and the property at any time pledged to
the Administrative Agent hereunder (whether described herein or not) and all income
therefrom, increases therein and proceeds thereof, including without limitation that
included in Cash Collateral. The term does not include any income, increases or proceeds
received by any Pledgor to the extent expressly permitted by Section 7.




     Time Deposits. See Section 4.




     UCC. The Uniform Commercial Code as the same may from time to time be in
effect in the State of New York (and each reference in this Agreement to an Article thereof
shall refer to that Article as from time to time in effect); provided, that in the
event that, by reason of mandatory provisions of law, any or all of the attachment,
perfection, non-perfection or priority of the Administrative Agent’s security interest in
any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction
other than the State of New York, the term “UCC” shall mean the Uniform Commercial
Code (including the Articles thereof) as in effect at such time in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,









 



 -  13  -



perfection,
non-perfection or priority and for purposes of definitions related to such provisions.



     3. Security for Obligations. This Agreement and the security interest in and pledge
of the Securities Collateral hereunder are made with and granted to the Administrative Agent, for
the benefit of the Secured Parties and the Administrative Agent, as security for the payment and
performance in full of all the Obligations (including all such Obligations which would become due
but for the operation of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code and
the operation of §§502(b) and 506(b) of the Federal Bankruptcy Code).



     4. Liquidation, Recapitalization, etc.




     4.1. Distributions Paid to Administrative Agent. Any sums or other property
paid or distributed upon or with respect to any of the Securities, whether by dividend or
redemption or upon the liquidation or dissolution of the Issuer thereof or otherwise,
shall, except to the limited extent provided in Section 7, be paid over and
delivered to the Administrative Agent to be held by the Administrative Agent, for the
benefit of the Secured Parties and the Administrative Agent, as security for the payment
and performance in full of all of the Obligations. In case, pursuant to the
recapitalization or reclassification of the capital of the Issuer thereof or pursuant to
the reorganization thereof, any distribution of capital shall be made on or in respect of
any of the Securities or any property shall be distributed upon or with respect to any of
the Securities, the property so distributed shall be delivered to the Administrative Agent,
for the benefit of the Secured Parties and the Administrative Agent, to be held by it as
security for the Obligations. Except to the limited extent provided in Section 7,
all sums of money and property paid or distributed in respect of the Securities, whether as
a dividend or upon such a liquidation, dissolution, recapitalization or reclassification or
otherwise, that are received by any Pledgor shall, until paid or delivered to the
Administrative Agent, be held in trust for the Administrative Agent, for the benefit of the
Secured Parties and the Administrative Agent, as security for the payment and performance
in full of all of the Obligations.




     4.2. Cash Collateral Account. All sums of money that are delivered to the
Administrative Agent pursuant to this Section 4 shall be deposited into (as
security for the payment and performance in full of all of the Obligations) an interest
bearing account with the Administrative Agent or, if the Administrative Agent is not the
depositary bank, to an interest bearing account in the name of the Administrative Agent,
for the benefit of the Secured Parties and the Administrative Agent, as customer with a
depositary bank satisfactory to the Administrative Agent (any such account, whether
maintained with the Administrative Agent or in the Administrative
Agent’s name as customer
being
herein referred to as the “Cash Collateral Account”). Some or all of the
funds from time to time in the Cash Collateral Account may be invested in time deposits,
including, without limitation, certificates of deposit issued by the









 



 -  14  -



Administrative Agent
(such certificates of deposit or other time deposits being hereinafter referred to,
collectively, as “Time Deposits”), that are satisfactory to the Administrative
Agent after consultation with the applicable Pledgor, provided, that, in each such
case, arrangements satisfactory to the Administrative Agent are made and are in place to
perfect and to insure the first priority of the Administrative Agent’s security interest
therein. Interest earned on the Cash Collateral Account and on the Time Deposits, and the
principal of the Time Deposits at maturity that is not invested in new Time Deposits, shall
be deposited in the Cash Collateral Account. The Cash Collateral Account, all sums from
time to time standing to the credit of the Cash Collateral Account, any and all Time
Deposits, any and all instruments or other writings evidencing Time Deposits and any and
all proceeds or any thereof are hereinafter referred to as the “Cash Collateral.”




     4.3. Pledgors’ Rights to Cash Collateral, etc. Except as otherwise expressly
provided in Section 18, no Pledgor shall have the right to withdraw sums from the
Cash Collateral Account, to receive any of the Cash Collateral or to require the
Administrative Agent to part with the Administrative Agent’s possession of any instruments
or other writings evidencing any Time Deposits.



     5. Warranty of Title; Authority. Each Pledgor hereby represents and warrants that:
(a) such Pledgor has good and marketable title to, and is the sole record and beneficial owner of,
the Securities described in Section 1, subject to no pledges, liens, security interests,
charges, options, restrictions or other encumbrances except the pledge and security interest
created by this Agreement, (b) with respect to Issuers which are partnerships and limited liability
companies, such Pledgor is a duly constituted partner or member, as the case may be, of such
partnership or limited liability company, as the case may be, pursuant to the partnership agreement
or operating agreement, as the case may be, of such Issuer, (c) all of the Securities described in
Section 1 are validly issued, fully paid and non-assessable (or the foreign equivalent
thereof, as applicable), (d) such Pledgor has full corporate, limited liability company or other
necessary power, authority and legal right to execute, deliver and perform its obligations under
this Agreement and to pledge and grant a security interest in all of the Securities Collateral
pursuant to this Agreement, and the execution, delivery and performance hereof and the pledge of
and granting and enforcement (where applicable) of a security interest in the Securities Collateral
hereunder have been duly authorized by all necessary corporate, limited liability company or other
action and do not contravene any law, rule or regulation or any provision of such Pledgor’s charter
documents, operating agreement, partnership agreement, by-laws or other governing document or of
any judgment, decree or order of any tribunal or of any agreement or instrument to which such
Pledgor is a party or by which it or any of its property is bound or affected or constitute a
default thereunder, (e) the information set forth in Annex A hereto relating to the
Securities is true, correct and
complete in all respects, and (f) such Pledgor has no obligation to make any contribution,
capital call or other payment to any Issuer with respect to the Securities. Each Pledgor further
represents and warrants that except as previously









 



 -  15  -



disclosed to the Administrative Agent, none of
the Securities Collateral consisting of partnership or limited liability company interests (i) is
dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly
provides that it is a security governed by Article 8 of the UCC, (iii) is an investment company
security, (iv) is held in a securities account or (v) constitutes a Security or a Financial Asset.
Each Pledgor further makes each of the representations and warranties applicable to it under the
Credit Agreement and each other Loan Document, and each such representation and warranty is hereby
incorporated herein by reference and made a part hereof. Each Pledgor covenants that it will
defend the rights of the Secured Parties and the Administrative Agent and security interest of the
Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, in such
Securities against the claims and demands of all other persons whomsoever. Each Pledgor further
covenants that it will have the like title to and right to pledge and grant a security interest in
the Securities Collateral hereafter pledged or in which a security interest is granted to the
Administrative Agent hereunder and will likewise defend the rights, pledge and security interest
thereof and therein of the Secured Parties and the Administrative Agent. Each Pledgor further
covenants that such Pledgor shall not, without executing and delivering, or causing to be executed
and delivered, to the Administrative Agent such agreements, documents and instruments as the
Administrative Agent may reasonably require, issue or acquire any Equity Interest consisting of an
interest in a partnership or a limited liability company that (i) is dealt in or traded on a
securities exchange or in a securities market, (ii) by its terms expressly provides that it is a
security governed by Article 8 of the UCC, (iii) is an investment company security, (iv) is held in
a securities account or (v) constitutes a Security or a Financial Asset.



     6. Loan Document Terms. Each Pledgor shall at all times comply with the covenants and
other obligations, including the Obligations, applicable to it under the Credit Agreement and each
other Loan Document, and each such covenant and other obligation is hereby incorporated herein by
reference and made a part hereof.



     7. Dividends, Voting, etc., Prior to Maturity. So long as no Event of Default shall
have occurred and be continuing, each Pledgor shall be entitled to receive all sums of money and
property, except for additional Securities, paid or distributed in respect of the Securities,
whether as a dividend or upon a liquidation, dissolution, recapitalization or reclassification or
otherwise in respect of the Securities, to vote the Securities (subject to the last sentence of
this paragraph) and to give consents, waivers and ratifications in respect of the Securities;
provided, however, that no vote shall be cast or consent, waiver or ratification
given by such Pledgor if the effect thereof could reasonably be expected to impair any of the
Securities Collateral or be inconsistent with or result in any violation of any of the provisions
of the Credit Agreement, the Notes or any of the other Loan Documents. All such rights of such
Pledgor to receive sums of money and property, except for additional Securities, paid or
distributed in respect of the
Securities shall cease in case an Event of Default shall have occurred and be continuing. All
such rights of such Pledgor to vote and give consents, waivers and ratifications with respect to
the Securities shall, at the Administrative Agent’s option, as evidenced by the









 



 -  16  -



Administrative
Agent’s notifying such Pledgor of such election, cease in case an Event of Default shall have
occurred and be continuing.



     8. Remedies.




     8.1. In General. If an Event of Default shall have occurred and be
continuing, the Administrative Agent shall thereafter have the following rights and
remedies (to the extent permitted by applicable law) in addition to the rights and remedies
of a secured party under the UCC and any other applicable law (including under the
Securities Act of 1933, as amended (the “Securities Act”) (or the foreign law
equivalent thereof)), all such rights and remedies being cumulative, not exclusive, and
enforceable alternatively, successively or concurrently, at such time or times as the
Administrative Agent deems expedient:




     (a) if the Administrative Agent so elects and gives notice of such election to
the Pledgors, the Administrative Agent may exercise any management or voting rights
relating to the Securities (whether or not the same shall have been transferred
into its name or the name of its nominee or nominees) for any lawful purpose,
including, without limitation, if the Administrative Agent so elects, for the
liquidation of the assets of the Issuer thereof or for the amendment or
modification of any of the charter, by-laws, operating agreements, partnership
agreements, memorandum and articles of association or other governing documents,
and give all consents, waivers and ratifications in respect of the Securities and
otherwise act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the Administrative
Agent its proxy and attorney-in-fact, with full power of substitution, to do so);




     (b) the Administrative Agent may demand, sue for, collect or make any
compromise or settlement the Administrative Agent deems suitable in respect of any
Securities Collateral;




     (c) the Administrative Agent may sell, resell, assign and deliver, or
otherwise dispose of any or all of the Securities Collateral, for cash or credit or
both and upon such terms at such place or places, at such time or times and to such
entities or other persons as the Administrative Agent thinks expedient, all without
demand for performance by such Pledgor or any notice or advertisement whatsoever
except as expressly provided herein or as may otherwise be required by law;




     (d) the Administrative Agent may cause all or any part of the Securities held
by it to be transferred into its name or the name of its
nominee or nominees or to cause such Securities to be registered under the
Securities Act or any other applicable law; and









 



 -  17  -



     (e) the Administrative Agent may set off against the Obligations any and all
sums deposited with it or held by it, including without limitation, any sums
standing to the credit of the Cash Collateral Account and any Time Deposits issued
by the Administrative Agent.




     8.2. Sale of Securities Collateral. In the event of any sale or other
disposition of the Securities Collateral as provided in clause (c) of Section
8.1, and to the extent that any notice thereof is required to be given by law, the
Administrative Agent shall give to Pledgors at least ten (10) days prior authenticated
notice of the time and place of any public sale or other disposition of the Securities
Collateral or of the time after which any private sale or any other intended disposition is
to be made. Each Pledgor hereby acknowledges that ten (10) days prior authenticated notice
of such sale or other disposition or sales or other dispositions shall be reasonable
notice. The Administrative Agent may enforce its rights hereunder without any other notice
and without compliance with any other condition precedent now or hereunder imposed by
statute, rule of law or otherwise (all of which are hereby expressly waived by Pledgors, to
the fullest extent permitted by law). The Administrative Agent may buy or otherwise
acquire any part or all of the Securities Collateral at any public sale or other
disposition and if any part or all of the Securities Collateral is of a type customarily
sold or otherwise disposed of in a recognized market or is of the type which is the subject
of widely-distributed standard price quotations, the Administrative Agent may buy or
otherwise acquire at private sale or other disposition and may make payments thereof by any
means. The Administrative Agent may apply the cash proceeds actually received from any
sale or other disposition to the reasonable expenses of retaking, holding, preparing for
sale, selling and the like, to reasonable attorneys’ fees, travel and all other expenses
which may be incurred by the Administrative Agent or any Secured Party in attempting to
collect the Obligations or to enforce this Agreement or in the prosecution or defense of
any action or proceeding related to the subject matter of this Agreement, and then to the
Obligations pursuant to Section 7.2 of the Credit Agreement. Only after such applications,
and after payment by the Administrative Agent of any amount required by §9-608(a)(1)(C) or
§9-615(a)(3) of the UCC, need the Administrative Agent account to Pledgors for any surplus.




     8.3. [Intentionally Omitted.]




     8.4. Private Sales. Each Pledgor recognizes that the Administrative Agent may
be unable to effect a public sale or other disposition of the Securities by reason of
certain prohibitions contained in the Securities Act, federal banking laws, and other
applicable laws, but may be compelled to resort to one or more private sales thereof to a
restricted group of purchasers. Each Pledgor agrees that
any such private sales may be at prices and other terms less favorable to the seller
than if sold at public sales and that such private sales shall not by reason thereof be
deemed not to have been made in a commercially reasonable manner. The









 



 -  18  -



Administrative Agent
shall be under no obligation to delay a sale of any of the Securities for the period of
time necessary to permit the Issuer of such securities to register such securities for
public sale under the Securities Act, or such other federal banking or other applicable
laws, even if the Issuer would agree to do so. Any such sale of all or a portion of the
Securities Collateral may be for cash or on credit or for future delivery and may be
conducted at a private sale where the Administrative Agent or any other person or entity
may be the purchaser of all or part of the Securities Collateral so sold. Subject to the
foregoing, the Administrative Agent agrees that any sale of the Securities shall be made in
a commercially reasonable manner, and each Pledgor agrees to use its best efforts to cause
the Issuer or Issuers of the Securities contemplated to be sold, to execute and deliver,
and cause the directors (or other analogous persons) and officers of such Issuer to execute
and deliver, all at such Pledgor’s expense, all such instruments and documents, and to do
or cause to be done all such other acts and things as may be necessary or, in the
reasonable opinion of the Administrative Agent, advisable to exempt such Securities from
registration under the provisions of the Securities Act (or the foreign law equivalent
thereof), and to make all amendments to such instruments and documents which, in the
opinion of the Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act (or the foreign law equivalent thereof) and the rules
and regulations of the Securities and Exchange Commission (or the foreign law equivalent
thereof) applicable thereto. Each Pledgor further agrees to use its best efforts to cause
such Issuer or Issuers to comply with the provisions of the securities or “Blue Sky” laws
of any jurisdiction which the Administrative Agent shall designate and, if required, to
cause such Issuer or Issuers to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act (or the foreign law equivalent thereof).




     8.5. Pledgors’ Agreements, etc. Each Pledgor further agrees to do or cause to
be done all such other acts and things as may be reasonably necessary on the part of such
Pledgor or with respect to the Issuer of the Securities to make any sales of any portion or
all of the Securities pursuant to this Section 8 valid and binding and in
compliance with any and all applicable laws (including, without limitation, the Securities
Act, the Securities Exchange Act of 1934, as amended, the rules and regulations of the
Securities and Exchange Commission applicable thereto, all applicable state securities or
“Blue Sky” laws and, in respect of each of the foregoing, the foreign law equivalent
thereof), regulations, orders, writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction
over any such sale or sales, all at such Pledgor’s expense. Each Pledgor further
acknowledges its obligation for payment of any deficiency remaining beyond the amount of
the sale
price of the Securities Collateral, or any of them, less any payment or expenses
incurred by the Administrative Agent or any Secured Party in connection with such sale, and
each Pledgor will promptly pay the amount of any such deficiency









 



 -  19  -



to the Administrative
Agent. Nothing contained in this Agreement shall be construed to require the
Administrative Agent to take any action with respect to the Securities Collateral, whether
by way of foreclosure or otherwise and except as required by the applicable partnership
agreement or operating agreement, in order to permit the Administrative Agent to become a
substitute partner or member of the Issuers, as the case may be, under the applicable
partnership agreement or operating agreement. Each Pledgor further agrees that a breach of
any of the covenants contained in this Section 8 will cause irreparable injury to
the Administrative Agent and the Secured Parties, that the Administrative Agent and the
Secured Parties have no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section 8 shall
be specifically enforceable against such Pledgor by the Administrative Agent and such
Pledgor hereby waives and agrees not to assert any defenses against an action for specific
performance of such covenants to the extent it lawfully may.



     9. Marshalling. None of the Administrative Agent nor any Secured Party shall be
required to marshal any present or future collateral security for (including but not limited to
this Agreement and the Securities Collateral), or other assurances of payment of, the Obligations
or any of them, or to resort to such collateral security or other assurances of payment in any
particular order. All of the Administrative Agent’s rights hereunder and of the Secured Parties
and the Administrative Agent in respect of such collateral security and other assurances of payment
shall be cumulative and in addition to all other rights, however existing or arising. To the
extent that it lawfully may, each Pledgor hereby agrees that it will not invoke any law relating to
the marshalling of collateral that might cause delay in or impede the enforcement of the
Administrative Agent’s rights under this Agreement or under any other instrument evidencing any of
the Obligations or under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and to the extent that it lawfully
may such Pledgor hereby irrevocably waives the benefits of all such laws.



     10. Pledgors’ Obligations Not Affected. The obligations of each Pledgor hereunder
shall remain in full force and effect without regard to, and shall not be impaired by (a) any
exercise or nonexercise, or any waiver, by the Administrative Agent or any Secured Party of any
right, remedy, power or privilege under or in respect of any of the Obligations or any security
thereof (including this Agreement); (b) any amendment to or modification of the Credit Agreement,
any Note, the other Loan Documents or any of the Obligations; (c) any amendment to or modification
of any instrument (other than this Agreement) securing any of the Obligations, including, without
limitation, any of the Collateral Documents; or (d) the taking of additional security for, or any
other assurances of payment of, any of the Obligations or the release or discharge or termination
of any security or other assurances of payment or performance for any of the Obligations; whether
or not such Pledgor shall have notice or knowledge of any of the foregoing, such
Pledgor hereby generally waiving all suretyship defenses to the extent applicable. Under no
circumstances shall the Administrative Agent, any of the Secured Parties or any









 



 -  20  -



holder of any of
the Obligations as such be deemed to be a shareholder, member, partner or other equity holder of
any of the Issuers by virtue of the provisions of this Agreement unless expressly agreed to in
writing by the Administrative Agent or such Lender or such holder.



     11. Transfer, etc., by Pledgors. Except as expressly permitted under the Credit
Agreement, without the prior written consent of the Administrative Agent, no Pledgor will sell,
assign, transfer or otherwise dispose of, grant any option with respect to, or pledge or grant any
security interest in or otherwise encumber or restrict any of the Securities Collateral or any
interest therein, except for the pledge thereof and security interest therein provided for in this
Agreement.



     12. Further Assurances. Each Pledgor will do all such acts, and will furnish to the
Administrative Agent all such financing statements, certificates, legal opinions and other
documents and will obtain all such governmental consents and corporate and other company approvals
and will do or cause to be done all such other things as the Administrative Agent may reasonably
request from time to time in order to give full effect to this Agreement and to secure the rights
of the Secured Parties and the Administrative Agent hereunder, all without any cost or expense to
any Administrative Agent or any Secured Party. Each Pledgor hereby irrevocably authorizes the
Administrative Agent at any time and from time to time to file in any filing office in any Uniform
Commercial Code jurisdiction (or the foreign law equivalent thereof) any initial financing
statements and amendments thereto that (a) indicate the Collateral as the Securities Collateral or
words of similar effect, or as being of equal or lesser scope or in greater detail, and (b) contain
any other information required by part 5 of Article 9 of the Uniform Commercial Code of the
jurisdiction of the filing office for the sufficiency or filing office acceptance of any financing
statement or amendment or any other applicable law, including whether such Pledgor is an
organization, the type of organization and any organization identification number issued to such
Pledgor. Each Pledgor agrees to furnish any such information to the Administrative Agent promptly
upon request. Each Pledgor also ratifies its authorization for the Administrative Agent to have
filed in any Uniform Commercial Code jurisdiction (or the foreign law equivalent thereof) any like
initial financing statements or amendments thereto if filed prior to the date hereof. Each Pledgor
will not permit to be effected any amendment of its Organization Documents that would impair in any
respects any right, remedy, or benefit of the Administrative Agent and Secured Parties hereunder,
provided that copies of any such amendment shall promptly (but in any event within three (3)
Business Days after execution thereof, and to the extent applicable, certified copies thereof)) be
delivered to the Administrative Agent.



     13. Administrative Agent’s Exoneration. Under no circumstances shall the
Administrative Agent be deemed to assume any responsibility for or obligation or duty with respect
to any part or all of the Securities Collateral of any nature or kind or any matter or proceedings
arising out of or relating thereto, other than (a) to exercise reasonable care in the physical
custody of the Securities Collateral and (b) after a Default
or an Event of Default shall have occurred and be continuing to act in a commercially









 



 -  21  -



reasonable manner. Neither the Administrative Agent nor any Secured Party shall be required to
take any action of any kind to collect, preserve or protect its or any Pledgor’s rights in the
Securities Collateral or against other parties thereto. The Administrative Agent’s prior recourse
to any part or all of the Securities Collateral shall not constitute a condition of any demand,
suit or proceeding for payment or collection of any of the Obligations. This Agreement constitutes
a pledge of the Securities Collateral and any other applicable collateral hereunder only, and not
an assignment of any duties or obligations of Pledgors with respect thereto, and by its acceptance
hereof and whether or not the Administrative Agent shall have exercised any of its rights or
remedies hereunder, none of the Administrative Agent or the Secured Parties undertakes to perform
or discharge, and none of the Administrative Agent or the Secured Parties shall be responsible or
liable for the performance or discharge of any such duties or responsibilities, including, without
limitation, for any capital calls. Each Pledgor agrees that, notwithstanding the exercise by the
Administrative Agent of any of its rights hereunder, such Pledgor shall remain liable nonetheless
for the full and prompt performance of all of such Pledgor’s obligations and liabilities under any
operating agreement, limited partnership agreement, or similar document evidencing or governing any
units of membership interest or limited partnership interest in any limited liability company or
limited partnership included in the Securities Collateral. Under no circumstances shall the
Administrative Agent, any of the Secured Parties or any holder of any of the Obligations as such be
deemed to be a member, limited partner, or other equity owner of any of the Issuers by virtue of
the provisions of this Agreement unless expressly agreed to in writing by the Administrative Agent
or such Secured Party or holder. Without limiting the generality of the foregoing, none of the
Administrative Agent or the Secured Parties shall have any fiduciary duty as such to Pledgors or
any other equity owner of any of the Issuers by reason of this Agreement, whether by virtue of the
security interests and liens hereunder, or any enforcement action in respect of such security
interests and liens, unless and until the Administrative Agent or such Secured Party is actually
admitted to the applicable Issuer as a substitute member or substitute equity owner thereof after
exercising enforcement rights under part 6 of Article 9 of the Uniform Commercial Code in effect in
the applicable jurisdiction, under any applicable law or otherwise.



     14. Amendments, etc. No amendment to or waiver of any provision of this Agreement,
nor consent to any departure by any Pledgor herefrom, shall in any event be effective unless the
same shall be made in accordance with Section 9.2(b) of the Credit Agreement and with the consent
of the Administrative Agent and the applicable Pledgor, and then any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given. No act,
failure or delay by the Administrative Agent shall constitute a waiver of its rights and remedies
hereunder or otherwise. No single or partial waiver by the Administrative Agent of any default or
right or remedy that it may have shall operate as a waiver of any other default, right or remedy or
of the same default, right or remedy on a future occasion.









 



 -  22  -


     15. Pledgor Waiver. Each Pledgor hereby waives promptness, diligence, presentment,
demand, protest, notice of acceptance, notice of any Obligations incurred and any other notice with
respect to any of the Obligations and this Agreement and any requirement that any Secured Party
protect, secure, perfect or insure any Lien, or any property subject thereto, or exhaust any right
or take any action against any Loan Party or any other Person (including any other guarantor) or
any collateral securing the Obligations, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect, and all surety
defenses generally.



     16. Registration and Filing. Each Pledgor (a) has caused each Issuer to duly register
the security interests granted hereby on the respective books of such Issuer and has furnished the
Administrative Agent with evidence thereof, (b) has duly executed and caused any financing
statements to be filed with respect to the Securities Collateral in such a manner and in such
places as may be required by law in order to fully protect the rights of the Administrative Agent
and the Secured Parties hereunder, and (c) will cause any financing statements with respect to the
Securities Collateral at all times to be kept recorded and filed at each of the respective Issuers’
expense in such a manner and in such places as may be required by law in order to fully perfect the
interests and protect the rights of the Administrative Agent and the Secured Parties hereunder.



     17. Notice, etc. All notices, requests and other communications hereunder shall be
made in the manner set forth in Section 9.1 of the Credit Agreement.



     18. Termination. Upon final payment and performance in full in cash of the
Obligations, the termination of all lending and other credit commitments of the Administrative
Agent and the Secured Parties in respect thereof (including all outstanding Letters of Credit), and
the termination of the Credit Agreement and the other Loan Documents, this Agreement shall
terminate and the Administrative Agent shall, at Pledgors’ request and expense, return such
Securities Collateral in the possession or control of the Administrative Agent as has not
theretofore been disposed of pursuant to the provisions hereof.



     19. Overdue Amounts. Until paid, all amounts due and payable by Pledgors hereunder
shall be a debt secured by the Securities Collateral and shall bear, whether before or after
judgment, interest at the rate of interest for overdue principal set forth in the Credit Agreement.



     20. Inconsistencies With Credit Agreement. In the event that any terms hereof are
inconsistent with the terms of the Credit Agreement, the terms of the Credit Agreement shall
control solely to the extent of any such conflict.



     21. Governing Law; Entire Agreement. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE §§ 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS AGREEMENT









 



 -  23  -



AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.



     22. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, ANY OTHER SECURED PARTY OR ANY PLEDGOR IN CONNECTION HEREWITH MAY BE BROUGHT
AND MAINTAINED IN THE SUPREME COURT OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF; PROVIDED,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH SECURITIES COLLATERAL
OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTCIES IN SECTION 9.1 OF THE CREDIT AGREEMENT. EACH PLEDGOR HEREBY EXPRESSLY,
UNCONDITIONALLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EXCEPT AS PROHIBITED BY LAW, EACH PLEDGOR HEREBY WAIVES ANY RIGHT SUCH PERSON MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. TO THE EXTENT ANY PLEDGOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.



     23. Waiver of Jury Trial; Certain Damages. EACH PARTY HERETO WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECLTY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS









 



 -  24  -



AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, OR OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     24. Additional Pledgors. The Borrower and Subsidiaries of the Borrower
(“Additional Pledgors”) may hereafter become parties to this Agreement by executing a
counterpart hereof, and there shall be no need to re-execute, amend or restate this Agreement in
connection therewith. Upon such execution and delivery by any Additional Pledgor, such Additional
Pledgor shall be deemed to have made the representations and warranties set forth in Sections
5 and 6 hereof, and shall be bound by all of the terms, covenants and conditions hereof
to the same extent as if such Additional Pledgor had executed this Agreement as of the date hereof,
and the Administrative Agent, for itself and the benefit of the Secured Parties, shall be entitled
to all of the benefits of such Additional Pledgor’s obligations hereunder.



     25. Headings. The various headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof.



     26. Execution in Counterparts. This Agreement may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement.



     27. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
of this Agreement or affecting the validity or enforceability of such provision in any other
jurisdiction.



     28. Miscellaneous. This Agreement and all rights and obligations hereunder shall be
binding upon each Pledgor and its respective successors and assigns, and shall inure to the benefit
of the Administrative Agent and the Secured Parties and their respective successors and assigns.
Each Pledgor acknowledges receipt of a copy of this Agreement.



[Remainder of Page Intentionally Left Blank]












 



 




          IN WITNESS WHEREOF, intending to be legally bound, each Pledgor and the Administrative Agent
have caused this Agreement to be executed as of the date first above written.




	 	 	 	 	 
	 	HARRIS INTERACTIVE INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	WIRTHLIN WORLDWIDE, LLC

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	THE WIRTHLIN GROUP INTERNATIONAL, L.L.C.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	LOUIS HARRIS & ASSOCIATES, INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 









 



-  2  - 

	 	 	 	 	 



	 	 	 	 	 
	 	GSBC OHIO CORPORATION

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE ASIA, LLC

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 










 








CERTIFICATE OF ACKNOWLEDGMENT FOR PLEDGORS




	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.

	COUNTY OF MONROE

	 	)	 	 






     On this ___ day of February, 2009, before me, the undersigned notary public, personally
appeared Deborah Rieger-Paganis, proved to me through satisfactory evidence of identification,
which were                                         , to be the person whose name is signed on the preceding or
attached document, and acknowledged to me that she signed it voluntarily for its stated purpose as
Interim Chief Financial Officer for HARRIS INTERACTIVE INC., a Delaware corporation, HARRIS
INTERACTIVE INTERNATIONAL INC., a Delaware corporation, WIRTHLIN WORLDWIDE, LLC, a Delaware limited
liability company, THE WIRTHLIN GROUP INTERNATIONAL, L.L.C., a Delaware limited liability company,
LOUIS HARRIS & ASSOCIATES, INC., a New York corporation, HARRIS INTERACTIVE ASIA, LLC, a Delaware
limited liability company, and GSBC OHIO CORPORATION, a Ohio corporation.



(official signature and seal of notary)





My commission expires:










 





	 	 	 	 	 
	 	JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 











 



 





     The undersigned Issuers hereby join in the above Agreement for the sole purpose of consenting
to and being bound by the provisions of Sections 4.1, 7 and 8 hereof, the undersigned hereby
agreeing to cooperate fully and in good faith with the Administrative Agent and Pledgors in
carrying out such provisions.



	 	 	 	 	 
	 	HARRIS INTERACTIVE INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	WIRTHLIN WORLDWIDE, LLC

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	THE WIRTHLIN GROUP INTERNATIONAL, L.L.C.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	LOUIS HARRIS & ASSOCIATES, INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	GSBC OHIO CORPORATION

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 










 



 

	 	 	 	 	 
	 	HARRIS INTERACTIVE ASIA, LLC

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	WIRTHLIN UK LIMITED

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE SAS

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE AG

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	2144798 ONTARIO INC.

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 
	 	HARRIS INTERACTIVE ASIA LIMITED

 	 
	 	By:  	 	 
	 	 	Deborah Rieger-Paganis 	 
	 	 	Interim Chief Financial Officer 	 
	 











 



 




ANNEX A TO PLEDGE AGREEMENT





     None of the Issuers has any authorized, issued or outstanding shares of its capital stock,
membership interests, partnership interests or other equity interests of any class or any
commitments to issue any shares of its capital stock, membership interests, partnership interests
or other equity interests of any class or any securities convertible into or exchangeable for any
shares of its capital stock, membership interests, partnership interests or other equity interests
of any class except as otherwise stated in this Annex A.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	Number of	 	Number of	 	Par or
	 	 	Record	 	Class of	 	Authorized	 	Issued	 	Outstanding	 	Liquidation
	Issuer	 	Owner	 	Shares	 	Shares	 	Shares	 	Shares	 	Value
	Louis Harris &
Associates, Inc.

	 	Harris Interactive
Inc.
	 	Common
	 	 	200	 	 	 	10	 	 	 	10	 	 	No Par

	 
	Harris Interactive
International Inc.

	 	Harris Interactive
Inc.
	 	Common
	 	 	3,000	 	 	 	100	 	 	 	100	 	 	$	.01	 
	 
	GSBC Ohio 

Corporation

	 	Harris Interactive
Inc.
	 	Common
	 	 	100	 	 	 	100	 	 	 	100	 	 	No Par

	 
	Wirthlin UK Limited

	 	The Wirthlin Group
International,
L.L.C.
	 	Ordinary Shares
	 	 	1,000,000	 	 	 	874,939	 	 	 	874,939	 	 	£	1	 
	 
	Harris Interactive 

SAS

	 	Harris Interactive
International Inc.
	 	Shares
	 	102,656 shares
	 	102,656 shares
	 	102,656 shares
	 	€	1	 
	 
	Harris Interactive 

AG

	 	Harris Interactive
International Inc.
	 	Registered No Par

Value Shares
	 	35,775 registered
shares
	 	 	35,775	 	 	 	32,706	 	 	No Par

	 
	2144798 Ontario Inc.

	 	Harris Interactive
International Inc.
	 	Common
	 	Unlimited
	 	 	100	 	 	 	100	 	 	No Par

	 
	Harris Interactive 

Asia Limited

	 	Harris Interactive
International Inc.
	 	Shares
	 	 	1,000	 	 	 	1	 	 	 	1	 	 	HK$1













 



 


	 	 	 	 	 	 	 	 	 
	 	 	Record	 	 	 	 
	Issuer	 	Owner	 	Interest	 	Percentage Interest
	Wirthlin Worldwide,
LLC

	 	Harris Interactive Inc.
	 	Membership
	 	 	100	%
	 
	Harris Interactive
Asia, LLC

	 	Wirthlin Worldwide, LLC
	 	Membership
	 	 	100	%
	 
	The Wirthlin Group
International,
L.L.C.

	 	Wirthlin Worldwide, LLC
	 	Membership
	 	 	100	%












 



 


Annex VII




     IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly executed and
delivered by their authorized officers as of the date first above written.



	 	 	 	 	 
	 	GSBC OHIO CORPORATION

 	 
	 	By:  	 /s/ Deborah Rieger-Paganis	 
	 	Name:  	 Deborah Rieger-Paganis	 
	 	Title:  	Interim Chief      Financial Officer