Exhibit
10.25


 


Published CUSIP Number: 24802VAA9


 


 


CREDIT AGREEMENT


 


Dated as of May 25,
2007


 


among


 


DEMAND MEDIA, INC.


as the Borrower,


 


CERTAIN SUBSIDIARIES OF THE
BORROWER,


as the Guarantors,


 


BANK OF AMERICA, N.A.,


as Administrative Agent, Swing Line Lender and L/C Issuer,


 


RBC CAPITAL MARKETS,


as Syndication Agent


 


and


 


THE OTHER LENDERS PARTY
HERETO


 


 


BANC OF AMERICA SECURITIES
LLC and


RBC CAPITAL MARKETS


as Joint Lead Arrangers and Joint Book Managers


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND
  ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  24

  
	
  1.03

  	
  Accounting Terms

  	
  24

  
	
  1.04

  	
  Rounding

  	
  25

  
	
  1.05

  	
  Times of Day

  	
  25

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  25

  
	
  ARTICLE II THE COMMITMENTS
  AND CREDIT EXTENSIONS

  	
  25

  
	
  2.01

  	
  Loans

  	
  25

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
  26

  
	
  2.03

  	
  Letters of Credit

  	
  28

  
	
  2.04

  	
  Swing Line Loans

  	
  35

  
	
  2.05

  	
  Prepayments

  	
  37

  
	
  2.06

  	
  Termination or Reduction of Aggregate Revolving Commitments

  	
  38

  
	
  2.07

  	
  Repayment of Loans

  	
  39

  
	
  2.08

  	
  Interest

  	
  39

  
	
  2.09

  	
  Fees

  	
  40

  
	
  2.10

  	
  Computation of Interest and Fees; Retroactive Adjustments
  of Applicable Rate

  	
  40

  
	
  2.11

  	
  Evidence of Debt

  	
  41

  
	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  41

  
	
  2.13

  	
  Sharing of Payments by Lenders

  	
  43

  
	
  ARTICLE III TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
  44

  
	
  3.01

  	
  Taxes

  	
  44

  
	
  3.02

  	
  Illegality

  	
  45

  
	
  3.03

  	
  Inability to Determine Rates

  	
  46

  
	
  3.04

  	
  Increased Costs

  	
  46

  
	
  3.05

  	
  Compensation for Losses

  	
  47

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  48

  
	
  3.07

  	
  Survival

  	
  48

  
	
  ARTICLE IV GUARANTY

  	
  48

  
	
  4.01

  	
  The Guaranty

  	
  48

  
	
  4.02

  	
  Obligations Unconditional

  	
  49

  
	
  4.03

  	
  Reinstatement

  	
  50

  
	
  4.04

  	
  Certain Additional Waivers

  	
  50

  
	
  4.05

  	
  Remedies

  	
  50

  
	
  4.06

  	
  Rights of Contribution

  	
  50

  
	
  4.07

  	
  Guarantee of Payment; Continuing Guarantee

  	
  51

  
	
  ARTICLE V CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  51

  
	
  5.01

  	
  Conditions of Initial Credit Extension

  	
  51

  
	
  5.02

  	
  Conditions to all Credit Extensions

  	
  53

  
	
  ARTICLE VI REPRESENTATIONS
  AND WARRANTIES

  	
  54

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  54

  
	
  6.02

  	
  Authorization; No Contravention

  	
  54

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  54

  
	
  6.04

  	
  Binding Effect

  	
  54

  
	
  6.05

  	
  Financial Statements; No Material Adverse Effect

  	
  54

  
	
  6.06

  	
  Litigation

  	
  55

  



 


i

















 


	
  6.07

  	
  No Default

  	
  55

  
	
  6.08

  	
  Ownership of Property; Liens

  	
  55

  
	
  6.09

  	
  Environmental Compliance

  	
  56

  
	
  6.10

  	
  Insurance

  	
  56

  
	
  6.11

  	
  Taxes

  	
  57

  
	
  6.12

  	
  ERISA Compliance

  	
  57

  
	
  6.13

  	
  Subsidiaries

  	
  57

  
	
  6.14

  	
  Margin Regulations; Investment Company Act

  	
  58

  
	
  6.15

  	
  Disclosure

  	
  58

  
	
  6.16

  	
  Compliance with Laws

  	
  58

  
	
  6.17

  	
  Intellectual Property; Licenses, Etc.

  	
  58

  
	
  6.18

  	
  Solvency

  	
  59

  
	
  6.19

  	
  Perfection of Security Interests in the Collateral

  	
  59

  
	
  6.20

  	
  Business Locations

  	
  59

  
	
  6.21

  	
  Labor Matters

  	
  59

  
	
  ARTICLE VII AFFIRMATIVE
  COVENANTS

  	
  59

  
	
  7.01

  	
  Financial Statements

  	
  59

  
	
  7.02

  	
  Certificates; Other Information

  	
  60

  
	
  7.03

  	
  Notices

  	
  62

  
	
  7.04

  	
  Payment of Obligations

  	
  63

  
	
  7.05

  	
  Preservation of Existence, Etc.

  	
  63

  
	
  7.06

  	
  Maintenance of Properties

  	
  64

  
	
  7.07

  	
  Maintenance of Insurance

  	
  64

  
	
  7.08

  	
  Compliance with Laws

  	
  64

  
	
  7.09

  	
  Books and Records

  	
  64

  
	
  7.10

  	
  Inspection Rights

  	
  65

  
	
  7.11

  	
  Use of Proceeds

  	
  65

  
	
  7.12

  	
  Additional Subsidiaries

  	
  65

  
	
  7.13

  	
  ERISA Compliance

  	
  65

  
	
  7.14

  	
  Pledged Assets

  	
  66

  
	
  ARTICLE VIII NEGATIVE
  COVENANTS

  	
  66

  
	
  8.01

  	
  Liens

  	
  66

  
	
  8.02

  	
  Investments

  	
  68

  
	
  8.03

  	
  Indebtedness

  	
  69

  
	
  8.04

  	
  Fundamental Changes

  	
  70

  
	
  8.05

  	
  Dispositions

  	
  70

  
	
  8.06

  	
  Restricted Payments

  	
  70

  
	
  8.07

  	
  Change in Nature of Business

  	
  71

  
	
  8.08

  	
  Transactions with Affiliates and Insiders

  	
  71

  
	
  8.09

  	
  Burdensome Agreements

  	
  71

  
	
  8.10

  	
  Use of Proceeds

  	
  72

  
	
  8.11

  	
  Financial Covenants

  	
  72

  
	
  8.12

  	
  Prepayment of Other Indebtedness, Etc.

  	
  72

  
	
  8.13

  	
  Organization Documents; Fiscal Year; Legal Name, State of
  Formation and Form of Entity

  	
  72

  
	
  8.14

  	
  Ownership of Subsidiaries

  	
  73

  
	
  8.15

  	
  Sale Leasebacks

  	
  73

  
	
  ARTICLE IX EVENTS OF DEFAULT
  AND REMEDIES

  	
  73

  
	
  9.01

  	
  Events of Default

  	
  73

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  75

  
	
  9.03

  	
  Application of Funds

  	
  75

  



 


ii

















 


	
  ARTICLE X ADMINISTRATIVE
  AGENT

  	
  76

  
	
  10.01

  	
  Appointment and Authority

  	
  76

  
	
  10.02

  	
  Rights as a Lender

  	
  76

  
	
  10.03

  	
  Exculpatory Provisions

  	
  77

  
	
  10.04

  	
  Reliance by Administrative Agent

  	
  77

  
	
  10.05

  	
  Delegation of Duties

  	
  78

  
	
  10.06

  	
  Resignation of Administrative Agent

  	
  78

  
	
  10.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  79

  
	
  10.08

  	
  No Other Duties; Etc.

  	
  79

  
	
  10.09

  	
  Administrative Agent May File Proofs of Claim

  	
  79

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  80

  
	
  ARTICLE XI
  MISCELLANEOUS

  	
  80

  
	
  11.01

  	
  Amendments, Etc.

  	
  80

  
	
  11.02

  	
  Notices and Other Communications; Facsimile Copies

  	
  82

  
	
  11.03

  	
  No Waiver; Cumulative Remedies

  	
  84

  
	
  11.04

  	
  Expenses; Indemnity; and Damage Waiver

  	
  84

  
	
  11.05

  	
  Payments Set Aside

  	
  85

  
	
  11.06

  	
  Successors and Assigns

  	
  86

  
	
  11.07

  	
  Treatment of Certain Information; Confidentiality

  	
  89

  
	
  11.08

  	
  Set-off

  	
  90

  
	
  11.09

  	
  Interest Rate Limitation

  	
  90

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  90

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  91

  
	
  11.12

  	
  Severability

  	
  91

  
	
  11.13

  	
  Replacement of Lenders

  	
  91

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  92

  
	
  11.15

  	
  Waiver of Right to Trial by Jury

  	
  93

  
	
  11.16

  	
  USA PATRIOT Act Notice

  	
  93

  



 


iii

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01(a)

  	
  Control Group

  	
   

  
	
  1.01(b)

  	
  Existing Letters of Credit

  	
   

  
	
  2.01

  	
  Commitments and Applicable Percentages

  	
   

  
	
  6.05

  	
  Acquisitions

  	
   

  
	
  6.10

  	
  Insurance

  	
   

  
	
  6.13

  	
  Subsidiaries

  	
   

  
	
  6.17

  	
  IP Rights

  	
   

  
	
  6.20(a)

  	
  Locations of Real Property

  	
   

  
	
  6.20(b)

  	
  Taxpayer and Organizational Identification Numbers

  	
   

  
	
  6.20(c)

  	
  Changes in Legal Name, State of Formation and
  Structure

  	
   

  
	
  8.01

  	
  Liens Existing on the Closing Date

  	
   

  
	
  8.02

  	
  Investments Existing on the Closing Date

  	
   

  
	
  8.03

  	
  Indebtedness Existing on the Closing Date

  	
   

  
	
  11.02

  	
  Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.02

  	
  Form of Loan Notice

  	
   

  
	
  2.04

  	
  Form of Swing Line Loan Notice

  	
   

  
	
  2.11(a)(i)

  	
  Form of Revolving Note

  	
   

  
	
  2.11(a)(ii)

  	
  Form of Swing Line Note

  	
   

  
	
  7.02

  	
  Form of Compliance Certificate

  	
   

  
	
  7.12

  	
  Form of Joinder Agreement

  	
   

  
	
  11.06

  	
  Form of Assignment and Assumption

  	
   

  



 


iv

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT is entered into as of May 25, 2007 among DEMAND MEDIA, INC.,
a Delaware corporation (the “Borrower”), the Guarantors (defined
herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.


 


The
Borrower has requested that the Lenders provide a credit facility for the
purposes set forth herein, and the Lenders are willing to do so on the terms
and conditions set forth herein.


 


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


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING
TERMS


 


1.01         Defined Terms.


 


As
used in this Agreement, the following terms shall have the meanings set forth
below:


 


“Acquisition”,
by any Person, means the acquisition by such Person, in a single transaction or
in a series of related transactions, of all or any substantial portion of the
property of another Person or at least a majority of the Voting Stock of
another Person, in each case whether or not involving a merger or consolidation
with such other Person and whether for cash, property, services, assumption of
Indebtedness, securities or otherwise.


 


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


 


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


 


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


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.


 


“Aggregate
Revolving Commitments” means the Revolving Commitments of all the Lenders.  The aggregate principal amount of the
Aggregate Revolving Commitments in effect on the Closing Date is ONE HUNDRED
MILLION DOLLARS ($100,000,000).


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage of
the Aggregate Revolving Commitments represented by such Lender’s Revolving
Commitment at such time; provided that if the commitment of each Lender to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.02 or if the
Aggregate Revolving Commitments have expired, then the Applicable Percentage of
each Lender shall be 


 

















 


determined
based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. 
The initial Applicable Percentage of each Lender is set forth opposite
the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.


 


“Applicable
Rate” means the following percentages per annum, based upon the
Consolidated Net Senior Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a):


 


	
  Pricing

  	
   

  	
  Consolidated Net

  Senior Leverage

  	
   

  	
  Commitment

  	
   

  	
  Applicable Margin

  	
   

  	
  Letter of

  	
   

  
	
  Tier

  	
   

  	
  Ratio

  	
   

  	
  Fee

  	
   

  	
  LIBOR

  	
   

  	
  Base Rate

  	
   

  	
  Credit Fee

  	
   

  
	
  I

  	
   

  	
  < 0.5:1.0

  	
   

  	
  0.20

  	
  %

  	
  1.00

  	
  %

  	
  0.00

  	
  %

  	
  1.00

  	
  %

  
	
  II

  	
   

  	
  > 0.5:1.0 but

  < 1.0:1.0

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  
	
  III

  	
   

  	
  > 1.0:1.0 but

  < 1.5:1.0

  	
   

  	
  0.30

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  
	
  IV

  	
   

  	
  > 1.5:1.0 but

  < 2.0:1.0

  	
   

  	
  0.375

  	
  %

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  
	
  V

  	
   

  	
  > 2.0:1.0 but

  < 2.5:1.0

  	
   

  	
  0.50

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  VI

  	
   

  	
  > 2.5:1.0

  	
   

  	
  0.50

  	
  %

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  



 


Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Net Senior Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
required to be delivered pursuant to Section 7.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then Pricing Tier VI shall apply as of the first
Business Day after the date on which such Compliance Certificate is required to
be delivered and shall continue to apply until the first Business Day
immediately following the date a Compliance Certificate is delivered in
accordance with Section 7.02(a), whereupon the Applicable Rate
shall be adjusted based upon the calculation of the Consolidated Net Senior
Leverage Ratio contained in such Compliance Certificate.  Notwithstanding the foregoing, the Applicable
Rate in effect from the Closing Date through the first Business Day immediately
following the date the Audited Financial Statements are delivered pursuant to Section 7.01(a)(i) and
the Compliance Certificate was delivered pursuant to Section 7.02(a) for
the fiscal year ending March 31, 2007 shall be determined based upon
Pricing Tier III.  Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).


 


“Approved
Fund” means any Fund 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.


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


 


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


 


2

















 


“Attributable Indebtedness” means, on any date, (a) in
respect of any Capital Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease and (c) in
respect of any Securitization Transaction of any Person, the outstanding
principal amount of such financing, after taking into account reserve accounts
and making appropriate adjustments, determined by the Administrative Agent in
its reasonable judgment.


 


“Audited Financial Statements” has the meaning specified in Section 7.01(a)(i).


 


“Available Revolving Committed Amount” means (a) prior to
the delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i),
the lesser of (i) $50,000,000 and (ii) the amount of the Aggregate
Revolving Commitments and (b) following the delivery of the Audited
Financial Statements, the amount of the Aggregate Revolving Commitments.


 


“Availability Period” means the period from and including the
Closing Date to the earliest of (a) the Maturity Date, (b) the date
of termination of the Aggregate Revolving Commitments pursuant to Section 2.06,
and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 9.02.


 


“Bank of America” means Bank of America, N.A.
and its successors.


 


“BAS” means Banc of America Securities LLC,
in its capacity as joint lead arranger and joint book manager.


 


“Base
Rate” means for any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 0.50% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its “prime rate.”  The “prime
rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.  Any change in the “prime rate” announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


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


 


“Borrower” has the meaning specified in the
introductory paragraph hereto.


 


“Borrower Materials” has the meaning
specified in Section 7.02.


 


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


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.


 


3

















 


“Businesses”
means, at any time, a collective reference to the businesses operated by the
Borrower and its Subsidiaries at such time.


 


“Capital
Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted
for as a capital lease on the balance sheet of that Person.


 


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


 


“Cash
Equivalents” means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United States
is pledged in support thereof) having maturities of not more than twelve months
from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (any such bank being an “Approved Bank”),
in each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody’s and maturing within six months of the date of acquisition,
(d) repurchase agreements entered into by any Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States in which such Person shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in accordance
with GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940 which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (d).


 


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


 


“Change
of Control” means the occurrence of any of the following events:


 


(a)           the failure of the Control Group to maintain
beneficial ownership of at least a majority of the Equity Interests of the
Borrower entitled to vote for the members of the board of directors or
equivalent governing body of the Borrower on a fully diluted basis; or


 


(b)           during any period of 24 consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election, appointment or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election,
appointment or nomination at least a majority of that board or equivalent
governing body or (iii) whose election, appointment or nomination to that
board or other equivalent governing body was approved by individuals referred
to in clauses (i) and (ii) above constituting at the time
of such election, appointment or nomination at least a majority of that board
or 


 


4

















 


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


 


“Closing
Date” means the date hereof.


 


“Collateral”
means a collective reference to all real and personal property with respect to
which Liens in favor of the Administrative Agent, for the benefit of the
Lenders, are purported to be granted pursuant to and in accordance with the
terms of the Collateral Documents.


 


“Collateral
Documents” means a collective reference to the Security Agreement, the
Pledge Agreement, the Mortgages and other security documents as may be executed
and delivered by the Loan Parties pursuant to the terms of Section 7.14.


 


“Commitment” means, as to each Lender, the Revolving Commitment
of such Lender.


 


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


 


“Consolidated Capital Expenditures” means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
all capital expenditures, as determined in accordance with GAAP; provided,
however, that Consolidated Capital Expenditures shall not include
(a) expenditures made with proceeds of any Involuntary Disposition to the
extent such expenditures are used to purchase property that is the same as or
similar to the property subject to such Involuntary Disposition,
(b) Permitted Acquisitions or (c) Permitted Media Content/Domain Name
Acquisitions.


 


“Consolidated Cash Taxes” means, for any
period, for the Borrower and its Subsidiaries on a consolidated basis, the
aggregate of all taxes, as determined in accordance with GAAP, to the extent
the same are paid in cash during such period.


 


“Consolidated EBITDA” means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus (i) the following to the extent
deducted in calculating such Consolidated Net Income: (a) Consolidated
Interest Charges for such period, (b) the provision for federal, state,
local and foreign income taxes payable by the Borrower and its Subsidiaries for
such period, (c) depreciation and amortization expense for such period plus
(d) all non-cash, non-recurring charges or expenses for such period that
do not represent a cash item in such period or any future period, (e) one
time, non-recurring restructuring charges incurred in connection with a
Permitted Acquisition, a Permitted Media Content/Domain Name Acquisition and/or
a Pre-Closing Acquisition during such period, (f) one time, non-recurring
cost savings, including those related to head count reduction and transition
expenses in connection with a Permitted Acquisition, a Permitted Media
Content/Domain Name Acquisition and/or a Pre-Closing Acquisition during such
period and (g) any losses during such period related to foreign currency
exchanges, conversions and/or contracts, provided that the total
aggregate amount added back to Consolidated Net Income pursuant to clauses (e),
(f) and (g) for any period shall not exceed $2,500,000 minus (ii) any
gains during such period related to foreign currency contracts, all as
determined in accordance with GAAP.


 


“Consolidated Fixed Charge Coverage Ratio” means, as of any date
of determination, the ratio of (a) the sum of (i) Consolidated EBITDA
for the period of the four fiscal quarters most recently ended for which the
Borrower has delivered financial statements pursuant to Section 7.01(a) or
(b) less (ii) 


 


5

















 


Consolidated Capital Expenditures to (b) Consolidated Fixed
Charges for the period of the four fiscal quarters most recently ended for
which the Borrower has delivered financial statements pursuant to Section 7.01(a) or
(b).


 


“Consolidated Fixed Charges” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, an amount equal to the
sum of (i) Consolidated Cash Taxes for such period plus (ii) the
cash portion of Consolidated Interest Charges for such period plus
(iii) the amount of cash dividends and other distributions made by the
Borrower during such period, all as determined in accordance with GAAP.


 


“Consolidated Funded Indebtedness” means Funded Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP.


 


“Consolidated Interest Charges” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, an amount equal to the
sum of (i) 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, plus (ii) the
portion of rent expense with respect to such period under Capital Leases that
is treated as interest in accordance with GAAP plus (iii) the
implied interest component of Synthetic Leases with respect to such period.


 


“Consolidated Net Income” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the net income of the
Borrower and its Subsidiaries (excluding extraordinary gains and extraordinary
losses) for that period, as determined in accordance with GAAP.


 


“Consolidated
Net Senior Leverage Ratio” means, as of any date of determination, the
ratio of (a) the sum of (i) Consolidated Funded Indebtedness (other
than any Indebtedness outstanding under the Seller Notes and any Subordinated
Indebtedness) as of such date less (ii) the aggregate value of
unrestricted cash and Cash Equivalents in excess of $15,000,000 of the Borrower
and its Subsidiaries to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b).


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto. 
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 10% or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.


 


“Control
Group” means those Persons identified on Schedule 1.01(a).


 


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


 


“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.


 


6














 


“Default” means any event or condition that constitutes an Event
of Default or that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.


 


“Default Rate” means (a) when used with respect to
Obligations other than Letter of Credit Fees, an interest rate equal to (i) the
Base Rate plus (ii) the Applicable Rate, if any, applicable to Base
Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws and (b) when used with respect
to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2%
per annum.


 


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


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by
any Loan Party or any Subsidiary (including the Equity Interests of any
Subsidiary), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (a) the sale, lease, license, transfer
or other disposition of inventory or domain names or any property incidental to
the ownership of domain names in the ordinary course of business; (b)  the
sale, lease, license, transfer or other disposition in the ordinary course of
business of surplus, obsolete or worn out property no longer used or useful in
the conduct of business of any Loan Party and its Subsidiaries; (c) any
sale, lease, license, transfer or other disposition of property to any Loan
Party or any Subsidiary; provided, that if the transferor of such
property is a Loan Party (i) the transferee thereof must be a Loan Party
or (ii) to the extent such transaction constitutes an Investment, such
transaction is permitted under Section 8.02, (d) any
Involuntary Disposition and (e) the non-exclusive licenses of intellectual
property rights in the ordinary course of business.


 


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


 


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


 


“Earn Out Obligations” means, with respect to an
Acquisition, all obligations of the Borrower or any Subsidiary to make earn out
or other contingency payments (including purchase price adjustments,
non-competition and consulting agreements, or other indemnity obligations)
pursuant to the documentation relating to such Acquisition.  The amount of any Earn Out Obligations at the
time of determination shall be the aggregate amount, if any, of such Earn Out
Obligations that are required at such time under GAAP to be recognized as
liabilities on the consolidated balance sheet of the Borrower.


 


“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 11.06(b)(iv) and
(v) (subject to such consents, if any, as may be required under Section 11.06(b)(ii)).


 


“Environmental
Laws” means any and all federal, state, local, foreign and other applicable
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants,


 


7

















 


franchises,
licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.


 


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


 


“Equity Interests”  means,
with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in
such Person (including partnership, member or trust interests therein), whether
voting or nonvoting.


 


“Equity Issuance” means any issuance by any Loan Party or any
Subsidiary to any Person of its Equity Interests.


 


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


 


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


 


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


 


“Eurodollar
Base Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period.  If such rate is
not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum 


 


8

















 


determined
by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the
London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


“Eurodollar
Rate” means, for any Interest Period with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Base Rate for such
Eurodollar Rate Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest
Period.


 


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


 


“Eurodollar
Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred
to as “Eurocurrency liabilities”).  The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.


 


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


 


“Excluded Property” means, with respect to any Loan Party,
including any Person that becomes a Loan Party after the Closing Date as
contemplated by Section 7.12, (a) any owned or leased real or
personal property which is located outside of the United States, (b) any
personal property (including, without limitation, motor vehicles) in respect of
which perfection of a Lien is not either (i) governed by the Uniform
Commercial Code or (ii) effected by appropriate evidence of the Lien being
filed in either the United States Copyright Office or the United States Patent
and Trademark Office, (c) the Equity Interests of any direct Foreign
Subsidiary of a Loan Party to the extent not required to be pledged to secure
the Obligations pursuant to Section 7.14(a), (d) any property
which, subject to the terms of Section 8.09, is subject to a Lien
of the type described in Section 8.01(b), Section 8.01(i) or
Section 8.01(p) pursuant to documents which prohibit such Loan
Party from granting any other Liens in such property, (e) any leasehold
interest of any Loan Party in any office space and/or any data center, (f) rights
or interests in any license, contract, lease or agreement to which a Loan Party
is a party to the extent, but only to the extent, that a grant of a security
interest in such license, contract, lease or agreement would, under the terms
of such license, contract, lease or agreement, result in a breach of the terms
of, or constitute a default under such license, contract lease or agreement
(other than to the extent that any such prohibition would be rendered
ineffective pursuant to the Uniform Commercial Code).


 


“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender, the L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) 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 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 11.13), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Foreign 


 


9

















 


Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(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 3.01(a).


 


“Existing
Credit Agreement” means that certain Credit Agreement dated as of August 1,
2006 among the Borrower, certain subsidiaries of the Borrower, the lenders
party thereto and Wells Fargo Foothill, Inc., as the arranger and the
administrative agent, as amended or modified from time to time.


 


“Existing
Letters of Credit” means the letters of credit described by date of
issuance, letter of credit number, undrawn amount, name of beneficiary and date
of expiry on Schedule 1.01(b).


 


“Facilities”
means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by any Loan Party or any Subsidiary.


 


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


 


“Fee
Letter” means the letter agreement, dated April 18, 2007 among the
Borrower, Bank of America and BAS.


 


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


 


“Foreign
Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.


 


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


 


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


 


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


 


(a)           all obligations
for borrowed money, whether current or long-term (including the Obligations)
and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;


 


(b)           all purchase
money Indebtedness;


 


(c)           the principal
portion of all obligations under conditional sale or other title retention
agreements relating to property purchased by the Borrower or any Subsidiary
(other 


 


10

















 


than customary reservations or retentions of title under agreements
with suppliers entered into in the ordinary course of business);


 


(d)           all obligations
arising under letters of credit (including standby and commercial) (but not
including any letters of credit that are fully cash collateralized), bankers’
acceptances, bank guaranties (but not including any bank guaranties that are
fully cash collateralized), surety bonds and similar instruments;


 


(e)           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, in each case,
not past due for more than 90 days after the date on which such trade account
payable was invoiced), including, without limitation, any Earn Out Obligations
recognized as a liability on the balance sheet of the Borrower and its
Subsidiaries in accordance with GAAP;


 


(f)            the
Attributable Indebtedness of Capital Leases, Securitization Transactions and
Synthetic Leases;


 


(g)           all obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends;


 


(h)           all Funded Indebtedness of
others secured by (or for which the holder of such Funded Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed;


 


(i)            all Guarantees
with respect to Funded Indebtedness of the types specified in clauses (a) through
(h) above of another Person; and


 


(j)            all Funded
Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general
partner or joint venturer, except to the extent that Funded Indebtedness is
expressly made non-recourse to such Person.


 


For purposes hereof, the amount of any direct obligation arising under
letters of credit (including standby and commercial), bankers’ acceptances,
bank guaranties, surety bonds and similar instruments shall be the maximum
amount then available to be drawn thereunder.


 


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


 


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


 


11

















 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guarantors”
means each Domestic Subsidiary of the Borrower identified as a “Guarantor” on
the signature pages hereto and each other Person that joins as a Guarantor
pursuant to Section 7.12, together with their successors and
permitted assigns.


 


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
and the Lenders pursuant to Article IV.


 


“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.


 


“Honor
Date” has the meaning set forth in Section 2.03(c).


 


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


 


(a)           all Funded
Indebtedness;


 


(b)           the Swap
Termination Value of any Swap Contract;


 


(c)           all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a) and
(b) above of any other Person; and


 


(d)           all
Indebtedness of the types referred to in clauses (a) through (c) 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.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


12

















 


“Indemnitees” has the meaning specified in Section 11.04(b).


 


“Information” has the meaning specified in Section 11.07.


 


“Interest
Payment Date” means (a) as to any Eurodollar Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan (including a Swing Line Loan), the last Business Day of
each March, June, September and December and the Maturity Date.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Loan Notice provided
that:


 


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


 


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


 


(iii)          no Interest Period shall extend beyond the Maturity
Date.


 


“Interim
Financial Statements” has the meaning set forth in Section 5.01(c).


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests of another Person or of the media content, domain names or domain
name portfolios of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) an Acquisition.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested less any returns
of capital repayments on principal thereunder, without adjustment for
subsequent increases or decreases in the value of such Investment or any
interest accrued thereon.


 


“Involuntary
Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party
or any of its Subsidiaries.


 


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


 


“IRS” means the United States Internal
Revenue Service.


 


13

















 


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


 


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


 


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


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


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


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Revolving Loans.


 


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


 


“L/C
Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.


 


“L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  For all
purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.


 


“Lenders”
means each of the Persons identified as a “Lender” on the signature pages hereto
and their successors and assigns and, as the context requires, includes the
Swing Line Lender.


 


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


 


“Letter
of Credit” means (a) any standby  letter of
credit issued hereunder and (b) any Existing Letter of Credit.


 


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


 


14

















 


“Letter
of Credit Expiration Date” means the day that is thirty days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter
of Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) the
Available Revolving Committed Amount and (b) $25,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Revolving Commitments.


 


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


 


“Liquidity”
has the meaning specified in Section 8.11(c).


 


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


 


“Loan
Documents” means this Agreement, each Note, each Issuer Document, each
Joinder Agreement, the Collateral Documents and the Fee Letter.


 


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


 


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


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment
of the ability of the Borrower to perform its obligations under any Loan
Document to which it is a party or the Guarantors, taken as a whole, to perform
their obligations under the Loan Documents; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against
any Loan Party of any Loan Document to which it is a party.


 


“Material
Subsidiary” means, at any time, any Domestic Subsidiary of the Borrower now
existing or hereafter acquired or formed which has total assets valued in
excess of $50,000 as of the end of the most recent fiscal quarter for which
financial statements have been delivered hereunder, as calculated in accordance
with GAAP.


 


“Maturity
Date” means May 25, 2012.


 


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


 


“Mortgages”
means the mortgages, deeds of trust or deeds to secure debt that purport to
grant to the Administrative Agent, for the benefit of the holders of the
Obligations, a security interest in the fee 


 


15

















 


interest
and/or leasehold interests of any Loan Party in real property (other than
Excluded Property) acquired or leased by a Loan Party subsequent to the Closing
Date.


 


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


 


“Note”
or “Notes” means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or 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. The foregoing shall also include (a) all
obligations under any Swap Contract between any Loan Party and any Lender or
Affiliate of a Lender that is permitted to be incurred pursuant to Section 8.03(d) and
(b) all obligations under any Treasury Management Agreement between any
Loan Party and any Lender or Affiliate of a Lender.


 


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


 


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


 


“Outstanding
Amount” means (i) with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of any Loans occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.


 


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


 


“PBGC” means the Pension Benefit Guaranty
Corporation or any successor thereto.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate 


 


16

















 


contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


“Permitted
Acquisitions” means Investments consisting of an Acquisition (other than
any Permitted Media Content/Domain Name Acquisition) by any Loan Party, provided
that (i) no Default shall have
occurred and be continuing or would result from such Acquisition, (ii) the property acquired (or the property
of the Person acquired) in such Acquisition is used or useful in the same or a
similar line of business as the Borrower and its Subsidiaries were engaged in
on the Closing Date (or any reasonable extensions or expansions thereof), (iii) the Administrative Agent shall have
received all items in respect of the Equity Interests or property acquired in
such Acquisition required to be delivered by the terms of Section 7.12
and/or Section 7.14 (or such items will be delivered promptly to
the Administrative Agent following consummation of such Acquisition), (iv) in the case of an Acquisition of the
Equity Interests of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such Acquisition,
(v) the representations and
warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vi) if such transaction involves the
purchase of an interest in a partnership between the Borrower (or a Subsidiary)
as a general partner and entities unaffiliated with the Borrower or such
Subsidiary as the other partners, such transaction shall be effected by
having such equity interest acquired by a corporate holding company directly or
indirectly wholly-owned by the Borrower newly formed for the sole purpose of
effecting such transaction, (vii) immediately
after giving effect to such Acquisition, the Borrower shall have Liquidity of
at least $15,000,000, (viii) in the
case of an Acquisition for which the aggregate consideration (excluding equity
consideration) exceeds $7,500,000, (A) the Borrower shall have delivered
to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to such Acquisition on a Pro Forma Basis, the Loan
Parties would be in compliance with the financial covenants set forth in Section 8.11
as of the most recent fiscal quarter for which the Borrower was required to
deliver financial statements pursuant to Section 7.01(a) or (b) (or
if any such Acquisition occurs prior to the delivery of any financial
statements pursuant to Section 7.01(a) or (b), as of
the fiscal quarter ending March 31, 2007) and (B) the Borrower shall
have delivered to the Administrative Agent pro forma financial statements for
the Borrower and its Subsidiaries after giving effect to such Acquisition for
the twelve month period ending as of the most recent fiscal quarter in a form
satisfactory to the Administrative Agent, (ix) the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness,
deferred purchase price and any Earn Out Obligations but excluding any equity
consideration) paid by any Loan Party for any one Acquisition shall not exceed
an amount equal to 50% of Consolidated EBITDA for the most recent four fiscal
quarter period preceding the date of such Acquisition (such calculation to be
done on a Pro Forma Basis to include any Acquisitions, Investments and/or
Dispositions occurring during the applicable four fiscal quarter period) for
which the Borrower has delivered financial statements pursuant to Section 7.01(a) or
(b) (or if any such Acquisition occurs prior to the delivery of any
financial statements pursuant to Section 7.01(a) or (b),
as of the fiscal quarter ending March 31, 2007) and (x)(A) if such
Acquisition occurs prior to the delivery of the Audited Financial Statements in
accordance with Section 7.01(a)(i), (1) the aggregate
consideration (including cash and non-cash consideration, any assumption of
Indebtedness, deferred purchase price and any Earn-Out-Obligations but
excluding any equity consideration) paid by the Loan Parties for all such
Acquisitions occurring from the Closing Date until the delivery of the Audited
Financial Statements in accordance with Section 7.01(a)(i) shall
not exceed an aggregate amount equal to 100% of Consolidated EBITDA for the
fiscal year ended March 31, 2007 (such calculation to be based on the
Interim Financial Statements on a Pro Forma Basis to include any Acquisitions, Investments
and/or Dispositions occurring during the fiscal year ended March 31, 2007)
and (2) immediately after giving effect to any such Acquisition, the
Consolidated Net Senior Leverage Ratio (calculated on a Pro Forma Basis using
the Interim Financial Statements after giving effect to such Acquisition) shall
not exceed 1.5 to 1.0; provided, however, if the Consolidated Net
Senior Leverage Ratio (calculated on a Pro Forma Basis using the Interim
Financial 


 


17

















 


Statements
after giving effect to such Acquisition) is less than 1.0 to 1.0, there shall
be no limit on the size of any such Acquisition that occurs prior  to the delivery of the Audited Financial
Statements in accordance with Section 7.01(a)(i), and the amount of
consideration for any such Acquisition shall not count toward, or be limited
by, any of the baskets for Acquisitions described above and (B) if such
Acquisition occurs after the delivery of the Audited Financial Statements in
accordance with Section 7.01(a)(i), the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness,
deferred purchase price and any Earn-Out-Obligations but excluding any equity
consideration) paid by the Loan Parties for all such Acquisitions occurring
during any fiscal year shall not exceed an aggregate amount equal to 100% of
Consolidated EBITDA for the most recently ended fiscal year (such calculation
to be done on a Pro Forma Basis to include any Acquisitions, Investments
and/or Dispositions occurring during the applicable fiscal year); provided,
however, if the Consolidated Net Senior Leverage Ratio (calculated on a
Pro Forma Basis after giving effect to such Acquisition) is less than 1.0 to
1.0, there shall be no limit on the size of any such Acquisition that occurs
after the delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i),
and the amount of consideration for any such Acquisition shall not count
toward, or be limited by, any of  the
baskets for Acquisitions described above. 
Notwithstanding the foregoing, the parties hereto agree that any cash
received in respect of an Equity Issuance which (i) is immediately invested
upon receipt in a Foreign Subsidiary may be used by such Foreign Subsidiary as
consideration for an Acquisition or (ii) is immediately used upon receipt
by a Loan Party to acquire a Foreign Subsidiary, in each case will not (x) be
subject to the basket in clause (ix) above, (y) count toward the
fiscal year basket for Acquisitions described above or (z) count towards
the $7,500,000 basket in clause (viii) above.


 


“Permitted
Media Content/Domain Name Acquisitions” means Investments consisting of the
purchase of media content, domain names and/or domain name portfolios by any
Loan Party or any Subsidiary of any Loan Party, provided that (i) no Default shall have occurred and be
continuing or would result from such purchase, (ii) the
Administrative Agent shall have received all items in respect of the property
acquired in such purchase required to be delivered by the terms of Section 7.12
and/or Section 7.14 (or such items will be delivered promptly to
the Administrative Agent following the consummation of such Acquisition), (iii) the representations and warranties
made by the Loan Parties in each Loan Document shall be true and correct in all
material respects at and as if made as of the date of such purchase (after
giving effect thereto) except to the extent such representations and warranties
expressly relate to an earlier date, (iv) immediately
after giving effect to such purchase, the Borrower shall have Liquidity
totaling at least $15,000,000, (v) the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness,
deferred purchase price and any Earn Out Obligations but excluding any equity
consideration) paid by any Loan Party or any Subsidiary for any purchase
(constituting one transaction) of media content, domain names and/or domain
name portfolios shall not exceed an amount equal to 50% of Consolidated
EBITDA for the most recent four fiscal quarter period preceding the date of
such purchase (such calculation to be done on a Pro Forma Basis to include
any Acquisitions, Investments and/or Dispositions occurring during the
applicable four fiscal quarter period) for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b) (or
if any such Acquisition occurs prior to the delivery of any financial
statements pursuant to Section 7.01(a) or (b), as
of the fiscal quarter ending March 31, 2007)  and (vi)(A) if such purchase occurs
prior to the delivery of the Audited Financial Statements in accordance
with Section 7.01(a)(i), (1) the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness,
deferred purchase price, any Earn-Out-Obligations but excluding any equity
consideration) paid by the Loan Parties and its Subsidiaries for all such
purchases occurring from the Closing Date until the delivery of the Audited
Financial Statements in accordance with Section 7.01(a)(i) shall
not exceed an aggregate amount equal to 100% of Consolidated EBITDA for the
fiscal year ended March 31, 2007 (such calculation to be based on the
Interim Financial Statements on a Pro Forma Basis to include any
Acquisitions, Investments and Dispositions occurring during the fiscal
year ended March 31, 2007) and (2) immediately after giving effect to
any such purchase, the Consolidated Net Senior Leverage Ratio (calculated on a
Pro Forma Basis using the Interim Financial Statements after giving effect to
such purchase) shall not exceed 1.5 to 1.0; provided, however, if
the Consolidated Net Senior Leverage Ratio (calculated on a Pro Forma Basis 


 


18

















 


using
the Interim Financial Statements after giving effect to such purchase) is less
than 1.0 to 1.0, there shall be no limit on the size of any such purchase that
occurs prior  to the delivery of the
Audited Financial Statements in accordance with Section 7.01(a)(i),
and the amount of consideration for any such purchase shall not count toward,
or be limited by, any of the baskets for the purchases of media content, domain
names and/or domain name portfolios described above and (B) if such
purchase occurs after the delivery of the Audited Financial Statements in
accordance with Section 7.01(a)(i), the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness, deferred
purchase price and any Earn-Out-Obligations but excluding any equity
consideration) paid by the Loan Parties for all such purchases occurring during
any fiscal year shall not exceed an aggregate amount equal to 100% of
Consolidated EBITDA for the most recently ended fiscal year (such calculation
to be done on a Pro Forma Basis to include any Acquisitions, Investments
and/or Dispositions occurring during the applicable fiscal year); provided,
however, if the Consolidated Net Senior Leverage Ratio (calculated on a
Pro Forma Basis after giving effect to such purchase) is less than 1.0 to 1.0,
there shall be no limit on the size of any such purchase that occurs after the
delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i),
and the amount of consideration for any such purchase shall not count toward,
or be limited by, any of the baskets for purchases of media content, domain
names and/or domain name portfolios described above.  Notwithstanding the foregoing, the parties
hereto agree that any cash received in respect of an Equity Issuance which is
immediately invested in a Foreign Subsidiary upon receipt may be used by such
Foreign Subsidiary as consideration for a purchase of media content, domain
names and/or domain name portfolios, and such cash consideration shall not (x) be
subject to the basket in clause (v) above or (y) count toward the
fiscal year basket for purchases described above.


 


“Permitted
Investments” means, at any time, Investments by any Loan Party or any
of its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.


 


“Permitted
Liens” means, at any time, Liens in respect of property of any Loan Party
or any of its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.


 


“Permitted
Preferred Stock” means the capital stock issued by the Borrower with a
liquidation preference over its common stock that does not require payment of a
cash dividend or a mandatory redemption of any kind prior to the full repayment
of the Obligations of the Borrower and other Loan Parties.


 


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


 


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


 


“Platform”
has the meaning specified in Section 7.02.


 


“Pledge
Agreement” means the pledge agreement dated as of the Closing Date executed
in favor of the Administrative Agent, for the benefit of the holders of the
Obligations, by each of the Loan Parties, as amended or modified from time to
time in accordance with the terms hereof.


 


“Pre-Closing
Acquisition” means any Investment consisting of the purchase of media
content, domain names and/or domain name portfolios or any Acquisition by any
Loan Party or any Subsidiary that occurred prior to the Closing Date.


 


19














 


“Pro Forma Basis” means, (a) for purposes of calculating
the financial covenants set forth in Section 8.11 (including for
purposes of determining the Applicable Rate), that any Disposition, Involuntary
Disposition, Acquisition, Investment or Restricted Payment shall be deemed
to have occurred as of the first day of the most recent four fiscal quarter
period preceding the date of such transaction for which the Borrower was
required to deliver financial statements pursuant to Section 7.01(a) or
(b) or (b) for purposes of making any calculation of
Consolidated EBITDA or the financial covenants on a Pro Forma Basis in
determining whether an Acquisition or Investment occurring prior to the
delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i) constitutes
a Permitted Acquisition or Permitted Media Content/Domain Name Acquisition, as
applicable, that any such Acquisition or Investment shall be deemed to have
occurred as of the first day of the four fiscal quarter period ending on March 31,
2007.  In connection with the foregoing,
(i)(a) with respect to any Disposition or Involuntary Disposition, income
statement and cash flow statement items (whether positive or negative)
attributable to the property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and (b) with
respect to any Acquisition or Investment, income statement items attributable
to the Person or property acquired shall be included to the extent relating to
any period applicable in such calculations to the extent (A) such items
are not otherwise included in such income statement items for the Borrower and
its Subsidiaries in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.01 and (B) such items are
supported by financial statements or other information reasonably satisfactory
to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by the Borrower or any Subsidiary (including the Person or property acquired)
in connection with such transaction (A) shall be deemed to have been
incurred as of the first day of the applicable period and (B) if such
Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined
by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination.


 


“Pro Forma Compliance Certificate” means a certificate of a
Responsible Officer of the Borrower containing reasonably detailed calculations
of the financial covenants set forth in Section 8.11 as of the most
recent fiscal quarter end for which the Borrower was required to deliver
financial statements pursuant to Section 7.01(a) or (b) after
giving effect to the applicable transaction on a Pro Forma Basis.


 


“Public Lender” has the meaning specified in Section 7.02.


 


“RBC” means RBC Capital Markets, in its
capacity as syndication agent under the Credit Agreement.


 


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


 


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


 


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


 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an
L/C Credit Extension, a Letter of Credit Application and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations
and participations therein or (b) if the Commitments have been terminated,
the outstanding Loans, L/C Obligations and participations 


 


20

















 


therein.  The unfunded Commitments of, and the
outstanding Loans held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.


 


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


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Loan
Party 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, acquisition, cancellation or termination of
any such Equity Interests or on account of any return of capital to the
Borrower’s stockholders, partners or members (or the equivalent Person
thereof), or any setting apart of funds or property for any of the foregoing.


 


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


 


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


 


“Revolving
Note” has the meaning specified in Section 2.11(a).


 


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


 


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


 


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


 


“Securitization
Transaction” means, with respect to any Person, any financing transaction
or series of financing transactions (including factoring arrangements) pursuant
to which such Person or any Subsidiary of such Person may sell, convey or
otherwise transfer, or grant a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or similar rights to
payment to a special purpose subsidiary or affiliate of such Person.


 


“Security
Agreement” means the security agreement dated as of the Closing Date
executed in favor of the Administrative Agent, for the benefit of the holders
of the Obligations, by each of the Loan Parties, as amended or modified from
time to time in accordance with the terms hereof.


 


“Seller
Notes” means that certain Subordinated Unsecured Note dated August 31,
2006 issued by the Borrower in favor of the lenders identified therein.


 


21

















 


“Solvent”
or “Solvency” means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person’s property would
constitute unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d) the
fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured.  In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


“Subordinated
Indebtedness” means any Indebtedness of
the Borrower issued subsequent to
the Closing Date which (a) by its terms is expressly subordinated
in right of payment to the prior payment of the Obligations containing terms
and conditions (including without limitation subordination provisions)
satisfactory to the Administrative Agent and (b) is not subject to any
mandatory payments, prepayments, redemptions or repurchases at any time prior
to the date 180 days after the Maturity Date.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of Voting
Stock is at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


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


 


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


 


22

















 


“Swing
Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.


 


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


 


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


 


“Swing
Line Note” has the meaning specified in Section 2.11(a).


 


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


 


“Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear
on a balance sheet under GAAP.


 


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


 


“Threshold Amount” means $1,000,000.


 


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


 


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


 


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


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
that Pension Plan pursuant to Section 412 of the Internal Revenue Code for
the applicable plan year.


 


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


 


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


 


“Voting
Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar functions)
of such Person, even though the right so to vote has been suspended by the
happening of such a contingency.


 


23

















 


“Wholly Owned Subsidiary” means any Person
100% of whose Equity Interests are at the time owned by the Borrower directly
or indirectly through other Persons 100% of whose Equity Interests are at the
time owned, directly or indirectly, by the Borrower.


 


1.02         Other Interpretive
Provisions.


 


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


 


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


 


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


 


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


 


1.03         Accounting Terms.


 


(a)           Generally.  Except as otherwise specifically prescribed
herein, all accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements;
provided, however, that calculations of Attributable Indebtedness under any
Synthetic Lease or the implied interest component of any Synthetic Lease shall
be made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease.


 


24

















 


(b)           Changes in GAAP.  The Borrower will provide a written summary
of material changes in GAAP relevant to the applicable financial statements of
the Borrower and in the consistent application thereof with each annual and
quarterly Compliance Certificate delivered in accordance with Section 7.02(a).  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


(c)           Calculations.  Notwithstanding the above, the parties hereto
acknowledge and agree that all calculations of the financial covenants in Section 8.11
(including for purposes of determining the Applicable Rate) shall be made on a
Pro Forma Basis.


 


1.04         Rounding.


 


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


 


1.05         Times of Day.


 


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


 


1.06         Letter of Credit Amounts.


 


Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT
EXTENSIONS


 


2.01         Loans.


 


Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Revolving Loan”) to the Borrower in
Dollars from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving
Outstandings shall not exceed the Available Revolving Committed Amount, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, 


 


25

















 


plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Commitment.  Within the limits of each Lender’s Revolving
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, or a combination thereof, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as
Base Rate Loans.


 


2.02         Borrowings, Conversions and
Continuations of Loans.


 


(a)           Each Borrowing, each conversion of Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower’s irrevocable notice to the Administrative Agent, which may
be given by telephone.  Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in
a principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof.  Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. 
If the Borrower fails to specify a Type of a Loan in a Loan Notice or if
the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans.  If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)           Following receipt of a Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its
Applicable Percentage of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans as described in the preceding subsection.  In the case of a Borrowing, each Lender shall
make the amount of its Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative
Agent shall make all funds so received available to the Borrower in like funds
as received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date of
a Borrowing of Revolving Loans, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in full of
any such L/C Borrowings and second, shall be made available to the
Borrower as provided above.


 


26

















 


(c)           Except as otherwise provided herein, a Eurodollar
Rate Loan may be continued or converted only on the last day of the Interest
Period for such Eurodollar Rate Loan. 
During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.


 


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


 


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


 


(f)            Following the delivery of the Audited Financial
Statements, the Borrower may at any time and from time to time, upon prior
written notice by the Borrower to the Administrative Agent, increase the Aggregate
Revolving Commitments (but not the Letter of Credit Sublimit or the Swing Line
Sublimit) by up to FIFTY MILLION DOLLARS ($50,000,000) with additional
Revolving Commitments from any existing Lender or new Revolving Commitments
from any other Person selected by the Borrower and reasonably acceptable to the
Administrative Agent and the L/C Issuer; provided that:


 


(i)            any such increase shall be in a minimum principal
amount of $10,000,000 and in integral multiples of $1,000,000 in excess
thereof;


 


(ii)           no Default or Event of Default shall exist and be
continuing at the time of any such increase;


 


(iii)          no existing Lender shall be under any obligation to
increase its Revolving Commitment and any such decision whether to increase its
Revolving Commitment shall be in such Lender’s sole and absolute discretion;


 


(iv)          (A) any new Lender shall join this Agreement by
executing such joinder documents required by the Administrative Agent and/or (B) any
existing Lender electing to increase its Revolving Commitment shall have
executed a commitment agreement satisfactory to the Administrative Agent; and


 


(v)           as a condition precedent to such increase, the
Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the date of such increase signed by a Responsible Officer of
such Loan Party (A) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase and (B) in the
case of the Borrower, certifying that, before and after giving effect to such
increase, (1) the representations and warranties contained in Article VI
and the other Loan Documents are true and correct in all material respects on
and as of the date of such increase, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 2.02(f), the
representations and warranties contained in subsections (a) and (b) of
Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 7.01,
and (2) no Default or Event of Default exists.


 


27

















 


The Borrower shall prepay any Loans owing by it and outstanding on the
date of any such increase (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Loans ratable with any revised
Revolving Commitments arising from any nonratable increase in the Revolving
Commitments under this Section.


 


2.03         Letters of Credit.


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions set forth
herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
Lenders set forth in this Section 2.03, (1) from time to time
on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit in Dollars for the account
of the Borrower or any of its Subsidiaries, and to amend or extend Letters of
Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Revolving Outstandings shall not exceed the
Available Revolving Committed Amount, (y) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Commitment and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.  Furthermore, each
Lender with a Commitment acknowledges and confirms that it has a participation
interest in the liability of the L/C Issuer under the Existing Letters of
Credit in a percentage equal to its Applicable Percentage of the Revolving
Loans.  The Borrower’s reimbursement
obligations in respect of the Existing Letters of Credit, and each Lender’s
obligations in connection therewith, shall be governed by the terms of this
Agreement.


 


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


 


(A)          subject to Section 2.03(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date; or


 


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


 


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


 


(A)          any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with


 


28

















 


jurisdiction
over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the L/C Issuer
in good faith deems material to it;


 


(B)           the issuance of such Letter
of Credit would violate one or more policies of the L/C Issuer applicable to
letters of credit generally;


 


(C)           except as otherwise agreed
by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount less than $500,000;


 


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


 


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


 


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


 


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


 


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


 


(i)            Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least five (5) Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. 
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text


 


29














 


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


 


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


 


(iii)          If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an “Auto-Extension Letter of Credit”); provided that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued.  Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the
L/C Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 5.02
is not then satisfied, and in each case directing the L/C Issuer not to permit
such extension.


 


(iv)          Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will


 


30

















 


also
deliver to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.


 


(c)           Drawings and Reimbursements; Funding of
Participations.


 


(i)            Upon receipt from the beneficiary of any Letter of
Credit of any notice of drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of
any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage
thereof.  In such event, the Borrower
shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the conditions set
forth in Section 5.02 (other than the delivery of a Loan Notice)
and provided that, after giving effect to such Borrowing, the Total Revolving
Outstandings shall not exceed the Available Revolving Committed Amount.  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


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


 


(iii)          With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 5.02 cannot be satisfied or for any other reason,
the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. 
In such event, each Lender’s payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


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


 


(v)           Each Lender’s obligation to make Revolving Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any reason


 


31

















 


whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make
Revolving Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 5.02 (other than delivery by
the Borrower of a Loan Notice).  No such
making of an L/C Advance shall relieve or otherwise impair the obligation of
the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided
herein.


 


(vi)          If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds
Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation. 
A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.


 


(d)           Repayment of Participations.


 


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


 


(ii)           If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


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


 


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


 


(ii)           the existence of any claim, counterclaim, setoff,
defense or other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of


 


32

















 


such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


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


 


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


 


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


 


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


 


(f)            Role of L/C Issuer.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability
of any document or instrument related to any Letter of Credit or Issuer
Document.  The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer’s willful misconduct or
gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit unless the L/C Issuer is prevented or prohibited from so
paying as a result of any order or directive of any 


 


33

















 


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


 


(g)           Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation
for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 9.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section 2.03,
Section 2.05 and Section 9.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the
Lenders).  Derivatives of such term have
corresponding meanings.  The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts with the Administrative Agent.


 


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


 


(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.  Notwithstanding the foregoing, the Applicable
Rate in effect from the Closing Date through the first Business Day immediately
following the date the Audited Financial Statements are delivered pursuant to Section 7.01(a)(i) and
the Compliance Certificate is delivered pursuant to Section 7.02(a) for
the fiscal year ending March 31, 2007 shall be 1.50%.  Notwithstanding anything to the contrary
contained herein, while any Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.


 


(j)            Fronting Fee and Documentary and Processing
Charges Payable to L/C Issuer. The Borrower shall pay
directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Fee Letter,
computed on the actual daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit) and on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the first Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the
case of the first payment), 


 


34

















 


commencing
with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


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


 


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


 


2.04         Swing Line Loans.


 


(a)           Swing Line Facility.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans (each
such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to
time on any Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided,
however, that after giving effect to any Swing Line Loan, (i) the
Total Revolving Outstandings shall not exceed the Available Revolving Committed
Amount, and (ii) the aggregate Outstanding Amount of the Revolving Loans
of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Revolving Commitment, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan.  Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.


 


(b)           Borrowing Procedures.  Each Borrowing of Swing Line Loans shall be
made upon the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum principal amount of $500,000 and integral
multiples of $100,000 in excess thereof, and (ii) the requested borrowing
date, which shall be a Business Day. 
Each such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the 


 


35

















 


Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the
date of the proposed Borrowing of Swing Line Loans (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article V
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            The Swing Line Lender at any
time in its sole and absolute discretion may request, on behalf of the Borrower
(which hereby irrevocably requests and authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding.  Such request shall be
made in writing (which written request shall be deemed to be a Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the conditions set forth in Section 5.02
(other than the delivery of a Loan Notice) and provided that, after giving
effect to such Borrowing, the Total Revolving Outstandings shall not exceed the
Available Revolving Committed Amount. 
The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Loan Notice promptly after delivering such notice to the
Administrative Agent.  Each Lender shall
make an amount equal to its Applicable Percentage of the amount specified in
such Loan Notice available to the Administrative Agent in immediately available
funds for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 1:00 p.m. on the day specified in such Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


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


 


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


 


(iv)          Each Lender’s obligation to
make Revolving Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff,


 


36

















 


counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02.  No such purchase or funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower
to repay Swing Line Loans, together with interest as provided herein.


 


(d)           Repayment of Participations.


 


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


 


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


 


(e)           Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible
for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender funds its Revolving Loans
that are Base Rate Loans or risk participation pursuant to this Section 2.04
to refinance such Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the
account of the Swing Line Lender.


 


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


 


2.05         Prepayments.


 


(a)           Voluntary Prepayments.


 


(i)            Revolving Loans.  The Borrower may, upon notice from the
Borrower to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on
the date of prepayment of Base Rate Loans; (B) any such prepayment of
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding); and (C) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of
$500,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding).  Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid.  The Administrative
Agent will promptly 


 


37

















 


notify
each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(ii)           Swing Line Loans.  The Borrower may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from time
to time, voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal thereof then outstanding).  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the
date specified therein.


 


(b)           Mandatory Prepayments of Loans.


 


(i)            Revolving Commitments.  If for any reason the Total Revolving
Outstandings at any time exceed the Available Revolving Committed Amount then
in effect, the Borrower shall immediately prepay Revolving Loans and/or the
Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(b)(i) unless after the prepayment in full of
the Revolving Loans and the Swing Line Loans the Total Revolving Outstandings
exceed the Available Revolving Committed Amount then in effect.


 


(ii)           Application of Mandatory Prepayments.  All amounts required to be paid pursuant to
this Section 2.05(b) shall be applied to Revolving Loans and
Swing Line Loans and (after all Revolving Loans and Swing Line Loans have been
repaid) to Cash Collateralize L/C Obligations. 
Within the parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in
direct order of Interest Period maturities. 
All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or penalty,
and shall be accompanied by interest on the principal amount prepaid through
the date of prepayment.


 


2.06         Termination or Reduction of
Aggregate Revolving Commitments.


 


(a)           Optional Reductions.  The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments to an
amount not less than the Outstanding Amount of Revolving Loans, Swing Line
Loans and L/C Obligations; provided that (i) any such notice shall
be received by the Administrative Agent not later than 12:00 noon five (5) Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $2,000,000 or any whole multiple
of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate
or reduce (A) the Aggregate Revolving Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, (B) the
Letter of Credit Sublimit if, after giving effect thereto, the Outstanding
Amount of L/C Obligations 


 


38

















 


not
fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit,
or (C) the Swing Line Sublimit if, after giving effect thereto and to any
concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans
would exceed the Swing Line Sublimit.


 


(b)           Mandatory Reductions.  If after giving effect to any reduction or
termination of Revolving Commitments under this Section 2.06, the
Letter of Credit Sublimit or the Swing Line Sublimit exceed the Aggregate
Revolving Commitments at such time, the Letter of Credit Sublimit or the Swing
Line Sublimit, as the case may be, shall be automatically reduced by the amount
of such excess.


 


(c)           Notice.  The Administrative Agent will promptly notify
the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Aggregate Revolving Commitments under this Section 2.06.  Upon any reduction of the Aggregate Revolving
Commitments, the Revolving Commitment of each Lender shall be reduced by such
Lender’s Applicable Percentage of such reduction amount.  All fees in respect of the Aggregate
Revolving Commitments accrued until the effective date of any termination of
the Aggregate Revolving Commitments shall be paid on the effective date of such
termination.


 


2.07         Repayment of Loans.


 


(a)           Revolving Loans.  The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Revolving Loans
outstanding on such date.


 


(b)           Swing Line Loans.  The Borrower shall repay each Swing Line Loan
on the earlier to occur of (i) the date within one (1) Business Day
of demand therefor by the Swing Line Lender and (ii) the Maturity Date.


 


2.08         Interest.


 


(a)           Subject to the provisions of subsection (b) below,
(i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Rate, (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate and (iii) each
Swing Line Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.


 


(b)           (i)            If any amount of principal of any Loan is not paid
when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws until repaid.


 


(ii)           If any amount
(other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Laws until repaid.


 


(iii)          While any Event
of Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


39














 


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


 


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


 


2.09         Fees.


 


In
addition to certain fees described in subsections (i) and (j) of Section 2.03:


 


(a)           Commitment Fee.  The Borrower shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee at a rate per annum equal to (i) prior to the
delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i),
the sum of (A) 0.30% times the actual daily amount by which the
Available Revolving Committed Amount exceeds the sum of (1) the
Outstanding Amount of Revolving Loans and (2) the Outstanding Amount of
L/C Obligations plus (B)(x) during the first sixty days following the
Closing Date, 0.20% times the amount by which the Aggregate Revolving
Commitments exceed the Available Revolving Committed Amount and (y) commencing
on the sixty-first (61st) day following
the Closing Date, 0.30% times the amount by which the Aggregate
Revolving Commitments exceed the Available Revolving Committed Amount and (ii) following
the delivery of the Audited Financial Statements in accordance with Section 7.01(a)(i),
the product of (A) the Applicable Rate times (B) the actual
daily amount by which the Aggregate Revolving Commitments exceed the sum of (1) the
Outstanding Amount of Revolving Loans and (2) the Outstanding Amount of
L/C Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.  For purposes of clarification,
Swing Line Loans shall not be considered outstanding for purposes of
determining the unused portion of the Aggregate Revolving Commitments.


 


(b)           Fee Letter.  The Borrower shall pay to BAS and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. 
Such fees shall be fully earned when paid and shall be non-refundable
for any reason whatsoever.


 


2.10         Computation of Interest and
Fees; Retroactive Adjustments of Applicable Rate.


 


(a)           All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime
rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed.  All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 


40

















 


(b)           If,
as a result of any restatement of or other adjustment to the financial
statements of the Borrower or for any other reason, the Borrower or the Lenders
determine that (i) the Consolidated Net Senior Leverage Ratio as
calculated by the Borrower as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Net Senior Leverage Ratio would have
resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account
of the Lenders, promptly on demand by the Administrative Agent (or, after the
occurrence of an actual or deemed entry of an order for relief with respect to
the Borrower under the Debtor Relief Laws, automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for
such period.  This paragraph shall not
limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as
the case may be, under Section 2.03(c)(iii), 2.03(i) or
2.08(b) or under Article IX.  The Borrower’s obligations under this
paragraph shall survive the termination of the Aggregate Revolving Commitments
and the repayment of all other Obligations hereunder.


 


2.11         Evidence of Debt.


 


(a)           The Credit Extensions made
by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and by the Administrative Agent in the ordinary course of
business.  The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the
Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the accounts
and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence
of manifest error.  Upon the request of
any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a promissory
note, which shall evidence such Lender’s Loans in addition to such accounts or
records.  Each such promissory note shall
(i) in the case of Revolving Loans, be in the form of Exhibit 2.11(a)(i) (a
“Revolving Note”) and (ii) in the case of Swing Line Loans, be in
the form of Exhibit 2.11(a)(ii) (a “Swing Line Note”).  Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


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


 


2.12         Payments Generally;
Administrative Agent’s Clawback.


 


(a)           General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein.  The
Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such 


 


41

















 


Lender’s
Lending Office.  All payments received by
the Administrative Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue
to accrue.  Subject to the definition of “Interest
Period”, if any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.


 


(b)           (i)            Funding by Lenders; Presumption by
Administrative Agent.  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of any Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans.  If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


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


 


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


 


(c)           Failure to Satisfy Conditions Precedent.  If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and such funds are
not made available to the Borrower by the Administrative 


 


42

















 


Agent
because the conditions to the applicable Credit Extension set forth in Article V
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


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


 


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


 


2.13         Sharing of Payments by
Lenders.


 


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


 


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


 


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


 


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


 


43

















 


ARTICLE III


 


TAXES, YIELD PROTECTION AND
ILLEGALITY


 


3.01         Taxes.


 


(a)           Payments Free of Taxes.  Any and all payments by or on account of any
obligation of the Loan Parties hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if any Loan Party shall
be required by applicable law to deduct any Indemnified Taxes (including any
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 L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions and (iii) such
Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


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


 


(c)           Indemnification by the Loan Parties.  The Loan Parties shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, 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 L/C Issuer
(with a copy to the Administrative Agent), or by the Administrative Agent on its
own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive
absent manifest error.


 


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


 


(e)           Status of Lenders.  Any 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 resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


44

















 


Without
limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States, any Foreign Lender shall
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:


 


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


 


(ii)           duly completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)          in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section 881(c) of
the Internal Revenue Code, (x) a certificate to the effect that such
Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Internal Revenue Code,
or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of
the Internal Revenue Code and (y) duly completed copies of  Internal Revenue Service Form W-8BEN, or


 


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


 


(f)            Treatment of Certain Refunds.  If the Administrative Agent, any Lender or
the L/C Issuer 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 any
Loan Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section, it shall pay to such Loan Party an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Loan Party under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such Lender or the L/C Issuer, as the case may be,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.


 


3.02         Illegality.


 


If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority having jurisdiction over it has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or to determine or charge interest rates based upon
the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits
of, Dollars in the London interbank market, then, on notice thereof by such
Lender to the Borrower through the Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans
to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the 


 


45

















 


circumstances
giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurodollar Rate Loans.  Upon any
such prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted.


 


3.03         Inability to Determine Rates.


 


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


 


3.04         Increased Costs.


 


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


 


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


 


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


 


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


 


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


 


46

















 


be,
such additional amount or amounts as will compensate such Lender or the L/C
Issuer, as the case may be, for such additional costs incurred or reduction
suffered.


 


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


 


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


 


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


 


3.05         Compensation for Losses.


 


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


 


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


 


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


 


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


 


47

















 


including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained.  The Borrower shall also pay
any customary administrative fees charged by such Lender in connection with the
foregoing.


 


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


 


3.06         Mitigation Obligations;
Replacement of Lenders.


 


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


 


(b)           Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
is unable to make Eurodollar Rate Loans under Section 3.02 or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 11.13.


 


3.07         Survival.


 


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


 


ARTICLE IV


 


GUARANTY


 


4.01         The Guaranty.


 


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


 


48

















 


paid
in full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.


 


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


 


4.02         Obligations Unconditional.


 


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


 


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


 


(b)           any of the acts mentioned in any of the provisions
of any of the Loan Documents, any Swap Contract or Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Loan Documents, such
Swap Contracts or such Treasury Management Agreements shall be done or omitted;


 


(c)           the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented or
amended in any respect, or any right under any of the Loan Documents, any Swap
Contract or Treasury Management Agreement between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the Obligations
or any security therefor shall be released, impaired or exchanged in whole or
in part or otherwise dealt with;


 


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


 


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


 


49














 


With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Loan
Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement
or instrument referred to in the Loan Documents, such Swap Contracts or such
Treasury Management Agreements, or against any other Person under any other
guarantee of, or security for, any of the Obligations.


 


4.03         Reinstatement.


 


The
obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Administrative Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
the fees, charges and disbursements of counsel) incurred by the Administrative
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.


 


4.04         Certain Additional Waivers.


 


Each
Guarantor agrees that such Guarantor shall have no right of recourse to
security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the exercise of
rights of contribution pursuant to Section 4.06.


 


4.05         Remedies.


 


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


 


4.06         Rights of Contribution.


 


The
Guarantors agree among themselves that, in connection with payments made
hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. 
Such contribution rights shall be subordinate and subject in right of
payment to the obligations of such Guarantors under the Loan Documents and no
Guarantor shall exercise such rights of contribution until all Obligations have
been paid in full and the Commitments have terminated.


 


50

















 


4.07         Guarantee of Payment;
Continuing Guarantee.


 


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


 


ARTICLE V


 


CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS


 


5.01         Conditions of Initial Credit
Extension.


 


This
Agreement shall become effective upon, and the obligation of the L/C Issuer and
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:


 


(a)           Loan Documents.  Receipt by the Administrative Agent of
executed counterparts of this Agreement and the other Loan Documents, each
properly executed by a Responsible Officer of the signing Loan Party and, in
the case of this Agreement, by each Lender.


 


(b)           Opinions of Counsel. Receipt by the
Administrative Agent of favorable opinions of legal counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, dated as of the
Closing Date, and in form and substance satisfactory to the Administrative
Agent.


 


(c)           Financial Statements.  The Administrative Agent shall have received:


 


(i)            unaudited consolidated
financial statements of the Borrower and its Subsidiaries for the fiscal year
ended March 31, 2007, including balance sheets and statements of income or
operations, shareholders’ equity and cash flows (the “Interim Financial
Statements”); and


 


(ii)           financial projections for
the Borrower and its Subsidiaries in form and substance satisfactory to the
Lenders for each year commencing with the fiscal year ended March 31,
2008.


 


(d)           No Material Adverse Change.  There shall not have occurred a material
adverse change since March 31, 2006 in the operations, business, assets,
properties, liabilities (actual or contingent), condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole.


 


(e)           Litigation.  There shall not exist any action, suit,
investigation or proceeding pending or, to the knowledge of the Borrower,
threatened in any court or before an arbitrator or Governmental Authority that
could reasonably be expected to have a Material Adverse Effect.


 


(f)            Organization Documents, Resolutions, Etc.  Receipt by the
Administrative Agent of the following, each of which shall be originals or
facsimiles (followed promptly by originals), in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:


 


(i)            copies of the Organization
Documents of each Loan Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, where applicable, and
certified by a secretary or assistant secretary of such Loan Party to be true
and correct as of the Closing Date;


 


51

















 


(ii)           such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party; and


 


(iii)          such documents and
certifications as the Administrative Agent may reasonably require to evidence
that each Loan Party is duly organized or formed, and is validly existing, in
good standing and qualified to engage in business in its state of organization
or formation.


 


(g)           Perfection and Priority of Liens.  Receipt by the Administrative Agent of the
following:


 


(i)            searches of Uniform
Commercial Code filings in the jurisdiction of formation of each Loan Party or
where a filing would need to be made in order to perfect the Administrative
Agent’s security interest in the Collateral, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist other than
Permitted Liens;


 


(ii)           UCC financing statements for
each appropriate jurisdiction as is necessary, in the Administrative Agent’s
sole discretion, to perfect the Administrative Agent’s security interest in the
Collateral;


 


(iii)          all certificates evidencing
any certificated Equity Interests pledged to the Administrative Agent pursuant
to the Pledge Agreement, together with duly executed in blank and undated stock
powers attached thereto;


 


(iv)          searches of ownership of,
and Liens on, intellectual property of each Loan Party in the appropriate
governmental offices; and


 


(v)           duly executed notices of
grant of security interest in the form required by the Security Agreement as
are necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the intellectual property of the
Loan Parties.


 


(h)           Evidence of Insurance.  Receipt by the Administrative Agent of copies
of insurance policies or certificates of insurance of the Loan Parties
evidencing liability and casualty insurance meeting the requirements set forth
in the Loan Documents, including, but not limited to, naming the Administrative
Agent as additional insured (in the case of liability insurance) or loss payee
(in the case of hazard insurance) on behalf of the Lenders.


 


(i)            Closing Certificate.  Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Borrower certifying that (i) the
conditions specified in Sections 5.01(d) and (e) and Sections
5.02(a) and (b) have been satisfied, (ii) the
Borrower and its Subsidiaries (after giving effect to the transactions
contemplated hereby and the incurrence of Indebtedness related thereto) are
Solvent on a consolidated basis, and (iii) setting forth calculations
satisfactory to the Administrative Agent demonstrating that the Consolidated
Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the
transactions contemplated hereby) for the most recently ended four fiscal
quarters for which financial statements were delivered pursuant to Section 5.01(c)(i) is
not greater than 1.5 to 1.0.


 


52

















 


(j)            Termination of Existing Credit Agreement.  Receipt by the Administrative Agent of
evidence that the Existing Credit Agreement concurrently with the Closing Date
is being terminated and all Liens securing obligations under the Existing
Credit Agreement concurrently with the Closing Date are being released.


 


(k)           Fees.  Receipt by the Administrative Agent, RBC and
the Lenders of any fees required to be paid on or before the Closing Date.


 


(l)            Attorney Costs.  Unless waived by the Administrative Agent,
the Borrower shall have paid all fees, charges and disbursements of counsel to
the Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such fees, charges and disbursements
as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).


 


Without
limiting the generality of the provisions of the last paragraph of Section 11.04,
for purposes of determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


5.02         Conditions to all Credit
Extensions.


 


The
obligation of each Lender to honor any Request for Credit Extension is subject
to the following conditions precedent:


 


(a)           The representations and warranties of the Borrower
and each other Loan Party contained in Article VI or any other Loan
Document, shall be true and correct in all material respects on and as of the
date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date, and
except that for purposes of this Section 5.02, the representations
and warranties contained in subsections (a) and (b) of Section 6.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 7.01.


 


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


 


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


 


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


 


53

















 


ARTICLE VI


 


REPRESENTATIONS AND
WARRANTIES


 


The
Loan Parties represent and warrant to the Administrative Agent and the Lenders
that:


 


6.01         Existence, Qualification and
Power.


 


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


 


6.02         Authorization; No
Contravention.


 


The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party have been duly authorized by all necessary corporate
or other organizational action, and do not (a) contravene the terms of any
of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require
any payment to be made under (i) any Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of
any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law (including, without
limitation, Regulation U or Regulation X issued by the FRB).


 


6.03         Governmental Authorization;
Other Consents.


 


No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by any Loan
Party of this Agreement or any other Loan Document other than (i) those
that have already been obtained and are in full force and effect and (ii) filings
to perfect the Liens created by the Collateral Documents.


 


6.04         Binding Effect.


 


Each
Loan Document has been duly executed and delivered by each Loan Party that is
party thereto.  Each Loan Document constitutes
a legal, valid and binding obligation of each Loan Party that is party thereto,
enforceable against each such Loan Party in accordance with its term, subject
to the effect of bankruptcy, insolvency, fraudulent transfer, moratorium and
other laws affecting creditors’ rights generally and general principles of
equity.


 


6.05         Financial Statements; No
Material Adverse Effect.


 


(a)           The Audited Financial Statements furnished pursuant
to Section 7.01(a) (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as 


 


54

















 


otherwise
expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries
as of the date thereof, including liabilities for taxes, commitments and
Indebtedness required by GAAP.


 


(b)           The Interim Financial Statements (i) were
prepared in all material respects in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness required by GAAP.


 


(c)           From the date of the Interim Financial Statements to
and including the Closing Date, there has been no Disposition by the Borrower
or any Subsidiary, or any Involuntary Disposition, of any material part of the
business or property of the Borrower and its Subsidiaries, taken as a whole,
and, except as set forth on Schedule 6.05 hereto, no purchase or other
acquisition by any of them of any business or property (including any Equity
Interests of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which is not reflected in the foregoing financial statements or in
the notes thereto or has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.


 


(d)           The financial statements delivered pursuant to Section 7.01(a) and
(b) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a) and (b)) and present
fairly in all material respects (on the basis disclosed in the footnotes to
such financial statements) the consolidated financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of the dates
thereof and for the periods covered thereby.


 


(e)           Since March 31, 2006, there has been no event
or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.


 


6.06         Litigation.


 


There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Loan Parties, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against
any Loan Party or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or (b) could
reasonably be expected to have a Material Adverse Effect.


 


6.07         No Default.


 


(a)           Neither any Loan Party nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could
reasonably be expected to have a Material Adverse Effect.


 


(b)           No Default has occurred and is continuing.


 


6.08         Ownership of Property; Liens.


 


Each
of Loan Party and its Subsidiaries has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to 


 


55

















 


have
a Material Adverse Effect.  The property
of each Loan Party and its Subsidiaries is subject to no Liens, other than
Permitted Liens.


 


6.09         Environmental Compliance.


 


Except
as could not reasonably be expected to have a Material Adverse Effect:


 


(a)           Each of the Facilities and all operations at the
Facilities are in compliance with all applicable Environmental Laws, and there
is no violation of any Environmental Law with respect to the Facilities or the
Businesses, and there are no conditions relating to the Facilities or the
Businesses that could give rise to liability under any applicable Environmental
Laws.


 


(b)           None of the Facilities contains, or has previously
contained, any Hazardous Materials at, on or under the Facilities in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.


 


(c)           Neither any Loan Party nor any Subsidiary has
received any written or verbal notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason to
believe that any such notice will be received or is being threatened.


 


(d)           Hazardous Materials have not been transported or
disposed of from the Facilities, or generated, treated, stored or disposed of
at, on or under any of the Facilities or any other location, in each case by or
on behalf any Loan Party or any Subsidiary in violation of, or in a manner that
would be reasonably likely to give rise to liability under, any applicable
Environmental Law.


 


(e)           No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Loan Parties,
threatened, under any Environmental Law to which any Loan Party or any
Subsidiary is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any Loan Party, any Subsidiary, the Facilities or the
Businesses.


 


(f)            There has been no release or threat of release of
Hazardous Materials at or from the Facilities, or arising from or related to
the operations (including, without limitation, disposal) of any Loan Party or
any Subsidiary in connection with the Facilities or otherwise in connection with
the Businesses, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.


 


6.10         Insurance.


 


The
properties of the Loan Parties and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of such
Persons, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates.  The
insurance coverage of the Loan Parties and their Subsidiaries as in effect on
the Closing Date is outlined as to carrier, policy number, expiration date,
type, amount and deductibles on Schedule 6.10.


 


56

















 


6.11         Taxes.


 


The
Loan Parties and their Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against
any Loan Party or any Subsidiary that would, if made, have a Material Adverse
Effect.  Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement.


 


6.12         ERISA Compliance.


 


(a)           Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Internal Revenue Code and other
federal or state Laws, except to the extent that the failure to be in
compliance could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.  Each
Plan that is intended to qualify under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Loan Parties, nothing has
occurred which would prevent, or cause the loss of, such qualification.  Each Loan Party and each ERISA Affiliate have
made all required contributions to each Pension Plan subject to Section 412
of the Internal Revenue Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Pension Plan.


 


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


 


(c)           (i)  No ERISA Event has occurred or is
reasonably expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) no Loan Party or any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) no Loan Party or any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA
Affiliate has engaged in a transaction that could reasonably be expected to be
subject to Section 4069 or 4212(c) of ERISA.


 


6.13         Subsidiaries.


 


Set
forth on Schedule 6.13 is a complete and accurate list as of the Closing
Date of each Subsidiary of any Loan Party, together with (i) jurisdiction of formation, (ii) number of shares of each class of
Equity Interests outstanding, (iii) number
and percentage of outstanding shares of each class owned (directly or
indirectly) by any Loan Party or any Subsidiary and (iv) number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto.  The
outstanding Equity Interests of each Subsidiary of any Loan Party is validly
issued, fully paid and non-assessable.


 


57

















 


6.14         Margin Regulations;
Investment Company Act.


 


(a)           The Borrower is not engaged and will not engage,
principally or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.  Following the application
of the proceeds of each Borrowing or drawing under each Letter of Credit, not
more than 25% of the value of the assets (either of the Borrower only or of the
Borrower and its Subsidiaries on a consolidated basis) subject to the
provisions of Section 8.01 or Section 8.05 or subject
to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 9.01(e) will be margin stock.


 


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


 


6.15         Disclosure.


 


The
reports and financial statements of the Loan Parties, certificates or other
written information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished), taken as a whole, do not
contain any material misstatement of fact or omit 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 and other forward-looking statements, the
Loan Parties represent only that such information and statements were prepared
or made in good faith based upon assumptions and estimates believed to be
reasonable at the time, and no representation and warranty is made that such
projections or statements will be achieved, it being recognized that such
achievement depends on future events, some of which are not in the control of
the Loan Parties.


 


6.16         Compliance with Laws.


 


Each
Loan Party and each Subsidiary is in compliance with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.


 


6.17         Intellectual Property;
Licenses, Etc.


 


Each
Loan Party and its Subsidiaries own, or possess the legal right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective
businesses.  Set forth on Schedule
6.17 is a list of all IP Rights registered or pending registration with the
United States Copyright Office or the United States Patent and Trademark Office
and owned by each Loan Party as of the Closing Date.  Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, (i) no
claim has been asserted and is pending by any Person challenging or questioning
the use of any IP Rights or the validity or effectiveness of any IP Rights, nor
does any Loan Party know of any such claim, and, (ii) to the knowledge of
the Loan Parties, the use of any IP Rights by any Loan Party or any of its
Subsidiaries or the granting of a right or a license in respect of any IP
Rights from any Loan Party or any of its Subsidiaries does not infringe on the
rights of any Person.  As of the 


 


58

















 


Closing
Date, none of the IP Rights owned by any of the Loan Parties or any of its
Subsidiaries is subject to any licensing agreement or similar arrangement
except as set forth on Schedule 6.17.


 


6.18         Solvency.


 


The
Loan Parties are Solvent on a consolidated basis.


 


6.19         Perfection of Security
Interests in the Collateral.


 


The
Collateral Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby, which security interests and Liens
will be, upon filing of UCC-1 statements, filing of intellectual property
notices and the delivery of any instruments and stock certificates as required
hereunder, perfected security interests and Liens, prior to all other Liens
other than Permitted Liens.


 


6.20         Business Locations.


 


Set
forth on Schedule 6.20(a) is a list of all real property located in
the United States that is owned or leased by the Loan Parties as of the Closing
Date.  Set forth on Schedule 6.20(b) is
the tax payer identification number and organizational identification number of
each Loan Party as of the Closing Date. 
The exact legal name and state of organization of each Loan Party is as
set forth on the signature pages hereto. 
As of the Closing Date, except as set forth on Schedule 6.20(c),
no Loan Party has during the five years preceding the Closing Date (i) changed
its legal name, (ii) changed its state of formation, or (iii) been
party to a merger, consolidation or other change in structure.


 


6.21         Labor Matters.


 


There
are no collective bargaining agreements or Multiemployer Plans covering the
employees of any Loan Party or any Subsidiary as of the Closing Date and
neither any Loan Party nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five
years.


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause each
Subsidiary to:


 


7.01         Financial Statements.


 


Deliver
to the Administrative Agent and each Lender:


 


(a)           (i)            with respect to the fiscal
year ending March 31, 2007, on or before August 31, 2007, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of KPMG or other independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any 


 


59














 


qualification
or exception as to the scope of such audit (the “Audited Financial
Statements”);


 


(ii)           with respect to each fiscal
year thereafter, upon the earlier of the date that is 120 days after the end of
each fiscal year of the Borrower or the date such information is filed with the
SEC, a consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income
or operations, shareholders’ equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of KPMG or other independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and


 


(b)           upon the earlier of the date that is forty-five days
after the end of each of the first three fiscal quarters of each fiscal year of
the Borrower or the date such information is filed with the SEC, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion
of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Borrower
as fairly presenting in all material respects the financial condition, results
of operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.


 


7.02         Certificates; Other
Information.


 


Deliver
to the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


 


(a)           concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a
duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower;


 


(b)           at least 30 days prior to the end of each fiscal
year of the Borrower, beginning with the fiscal year ending March 31,
2008, an annual business plan and budget of the Borrower and its Subsidiaries
containing, among other things, pro forma financial statements for each quarter
of the next fiscal year;


 


(c)           promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the equityholders of any Loan Party, and copies of all
annual, regular, periodic and special reports and registration statements which
a Loan Party may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto;


 


(d)           promptly after any request by the Administrative
Agent or any Lender, copies of any detailed audit reports, management letters
or recommendations submitted to the board of 


 


60

















 


directors
(or the audit committee of the board of directors) of the Borrower by
independent accountants in connection with the accounts or books of the
Borrower or any Subsidiary, or any audit of any of them;


 


(e)           promptly after the furnishing thereof, copies of any
statement or report furnished to any holder of debt securities of any Loan
Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or
credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;


 


(f)            promptly, and in any event within five Business Days
after receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC (or comparable agency
in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or
other operational results of any Loan Party or any Subsidiary thereof;


 


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


 


(h)           concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a
certificate of a Responsible Officer of the Borrower (i) listing (A) all applications by any Loan Party in
the United States, if any, for Copyrights, Patents or Trademarks (each such term
as defined in the Security Agreement) made since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances to any Loan Party of
registrations or letters on existing applications for Copyrights, Patents and
Trademarks (each such term as defined in the Security Agreement) in the United
States received since the date of the prior certificate (or, in the case of the
first such certificate, the Closing Date), and (C) all material Trademark
Licenses, material Copyright Licenses and material Patent Licenses (each such
term as defined in the Security Agreement) entered into since the date of the
prior certificate (or, in the case of the first such certificate, the Closing
Date), and (ii) attaching the insurance binder or other evidence of
insurance for any insurance coverage of any Loan Party or any Subsidiary that
was renewed, replaced or modified during the period covered by such financial
statements; and


 


(i)            concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and
(b),  a certificate of a
Responsible Officer of the Borrower listing all Subsidiaries of the Borrower
formed or acquired, together with the (A) jurisdiction of formation, (B) number
of shares of each class of Equity Interests outstanding, (C) number and
percentage of outstanding shares of each class owned (directly or indirectly)
by the Borrower or any Subsidiary and (C) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto, since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date).


 


Documents
required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02 may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 11.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a 


 


61

















 


written
request to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) the Borrower shall notify the Administrative Agent
and each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 7.02(a) to the
Administrative Agent.  Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


The Borrower hereby acknowledges that (a) the Administrative Agent
and/or BAS will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, the “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 Person’s securities.  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, BAS and the Lenders to treat such Borrower
Materials as not containing any material non-public information 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 11.07); (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
as “Public Investor;” and (z) the Administrative Agent and BAS 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 marked as “Public
Investor.”  Notwithstanding the
foregoing, the Borrower shall be under no obligation to make any of the
Borrower Materials “PUBLIC”.


 


7.03         Notices.


 


(a)           Promptly (and in any event, within two Business Days
after a Responsible Officer obtains knowledge thereof) notify the
Administrative Agent of the occurrence of any Default.


 


(b)           Promptly (and in any event, within five Business
Days after a Responsible Officer obtains knowledge thereof) notify the
Administrative Agent of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of any Loan
Party or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary, including pursuant to any applicable Environmental Laws.


 


(c)           Promptly (and in any event, within five Business
Days after a Responsible Officer obtains knowledge thereof) notify the
Administrative Agent of the occurrence of any ERISA Event.


 


(d)           Promptly (and in any event, within five Business
Days after a Responsible Officer obtains knowledge thereof) notify the
Administrative Agent of any material change in accounting policies 


 


62

















 


or
financial reporting practices by the Borrower or any Subsidiary, including any
determination by the Borrower referred to in Section 2.10(b).


 


(e)           Upon the reasonable written request of the
Administrative Agent following the occurrence of any event or the discovery of
any condition which the Administrative Agent or the Required Lenders reasonably
believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 6.09 to be
untrue in any material respect, furnish or cause to be furnished to the
Administrative Agent, at the Loan Parties’ expense, a report of an
environmental assessment of reasonable scope, form and depth, (including, where
appropriate with respect to properties owned by a Loan Party, invasive soil or
groundwater sampling) by a consultant reasonably acceptable to the Administrative
Agent as to the nature and extent of the presence of any Materials of
Environmental Concern on any Real Properties (as defined in Section 6.09)
and as to the compliance by any Loan Party or any of its Subsidiaries with
Environmental Laws at such Real Properties owned by a Loan Party.  If the Loan Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of such
written request then the Administrative Agent may arrange for the same, and the
Loan Parties hereby grant to the Administrative Agent and its representatives
access to the Real Properties owned by a Loan Party to reasonably undertake
such an assessment (including, where appropriate, invasive soil or groundwater
sampling).  The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this provision will be
payable by the Loan Parties on demand and added to the obligations secured by
the Collateral Documents.


 


Each
notice pursuant to this Section 7.03(a) through (e) shall
be accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
applicable Loan Party has taken and proposes to take with respect thereto.  Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


7.04         Payment of Obligations.


 


Pay
and discharge, as the same shall become due and payable, all its obligations
and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Loan Party or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property, unless the same is being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the Loan
Party or such Subsidiary and any such Lien resulting therefrom shall be a
Permitted Lien; and (c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.


 


7.05         Preservation of Existence, Etc.


 


(a)           Preserve, renew and maintain
in full force and effect its legal existence under the Laws of the jurisdiction
of its organization except in a transaction permitted by Section 8.04
or 8.05.


 


(b)           Preserve,
renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


(c)           Take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


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(d)           Preserve or renew all of its material registered
patents, copyrights, trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material Adverse Effect.


 


7.06         Maintenance of Properties.


 


(a)           Maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear
excepted.


 


(b)           Make all necessary repairs
thereto and renewals and replacements thereof, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


(c)           Use the standard of care
typical in the industry in the operation and maintenance of its facilities.


 


7.07         Maintenance of Insurance.


 


Maintain in full force and effect insurance (including worker’s
compensation insurance, liability insurance and casualty insurance) with
financially sound and reputable insurance companies not Affiliates of any Loan
Party, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates.   The
Administrative Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect to any such insurance
providing coverage in respect of any Collateral, and each provider of any such
insurance shall agree, by endorsement upon the policy or policies issued by it
or by independent instruments furnished to the Administrative Agent, that it
will give the Administrative Agent thirty (30) days (or ten (10) days in
the case of nonpayment of premiums) prior written notice before any such policy
or policies shall be altered or canceled.


 


7.08         Compliance with Laws.


 


Comply
with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.


 


7.09         Books and Records.


 


(a)           Maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of such Loan Party or such
Subsidiary, as the case may be.


 


(b)           Maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over such Loan Party
or such Subsidiary, as the case may be.


 


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7.10         Inspection Rights.


 


Permit
representatives and independent contractors of the Administrative Agent and
each Lender accompanying the Administrative Agent (and, after the occurrence
and during the continuation of an Event of Default, each Lender) to visit and
inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided, however, that unless an Event of Default
has occurred and is continuing at the time such inspection commences, (i) the
Borrower shall not be required to pay expenses relating to more than two
inspections by the Administrative Agent in any twelve month period; provided
further that when an Event of Default has occurred and is continuing the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.


 


7.11         Use of Proceeds.


 


Use
the proceeds of the Credit Extensions (a) to refinance certain existing
Indebtedness, (b) to finance working capital, capital expenditures and
Permitted Acquisitions and Permitted Media Content/Domain Name Acquisitions and
(c) for other general corporate purposes, provided that in no event
shall the proceeds of the Credit Extensions be used in contravention of any Law
or of any Loan Document.


 


7.12         Additional Subsidiaries.


 


(a)           Within thirty (30) days after the acquisition or
formation of any Material Subsidiary, notify the Administrative Agent thereof
in writing, together with the (i) jurisdiction of formation, (ii) number
of shares of each class of Equity Interests outstanding, (iii) number and
percentage of outstanding shares of each class owned (directly or indirectly)
by the Borrower or any Subsidiary and (iv) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto; and


 


(b)           Within thirty (30) days after (i) the
acquisition or formation of any Domestic Subsidiary that is a Material Subsidiary
or (ii) the date on which the Borrower has delivered financial statements
demonstrating that any Domestic Subsidiary has become a Material Subsidiary,
cause such Person to (i) become a Guarantor by executing and delivering to
the Administrative Agent a Joinder Agreement or such other documents as the
Administrative Agent shall deem appropriate for such purpose, and (ii) deliver
to the Administrative Agent documents of the types referred to in Sections
5.01(f) and (g) and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause (a)), all
in form, content and scope reasonably satisfactory to the Administrative Agent.


 


7.13         ERISA Compliance.


 


Do,
and cause each of its ERISA Affiliates to do, each of the following: (a) maintain
each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other federal or state law, in each
case except to the extent that the failure to maintain compliance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (b) cause each Plan that is qualified under
Section 401(a) of the Internal Revenue Code to maintain such
qualification; and (c) make all required contributions to any Pension Plan
subject to Section 412 of the Internal Revenue Code.


 


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7.14         Pledged Assets.


 


(a)           Equity Interests.  Cause (a) 100% of the issued and
outstanding Equity Interests of each Domestic Subsidiary and (b) 66% (or
such greater percentage that, due to a change in an applicable Law after the
date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United
States federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary’s United States parent and (2) could not reasonably be
expected to cause any material adverse tax consequences) of the issued and
outstanding Equity Interests entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
in each Foreign Subsidiary directly owned by a Loan Party or any Domestic
Subsidiary to be subject at all times to a first priority, perfected Lien in
favor of the Administrative Agent, for the benefit of the Lenders, pursuant to
the terms and conditions of the Collateral Documents, together with opinions of
counsel and any filings and deliveries reasonably necessary in connection
therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Administrative Agent; provided, however, it is
understood and agreed that (x) the Loan Parties shall have thirty (30)
days from the delivery of the certificate required by Section 7.02(i) to
comply with the terms of this Section 7.14(a) with respect to
any Subsidiary that is not a Material Subsidiary, and that an opinion of
counsel will not be required to be delivered pursuant to the terms hereof with
respect to any Subsidiary that is not a Material Subsidiary formed or acquired
after the Closing Date and (y) local counsel legal opinions will not be
required with respect to the pledge of stock of Foreign Subsidiaries.


 


(b)           Other Property.  (i) Cause all of its owned and leased
real and personal property other than Excluded Property to be subject at all
times to first priority, perfected and, in the case of real property (whether
leased or owned), title insured Liens in favor of the Administrative Agent, for
the benefit of the Lenders, to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such property
acquired subsequent to the Closing Date, such other additional security
documents as the Administrative Agent shall reasonably request, subject in any
case to Permitted Liens and (ii) deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, real
estate title insurance policies, surveys, environmental reports, landlord’s
waivers, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
Administrative Agent’s Liens thereunder) and other items of the types required
to be delivered pursuant to Section 5.01(g), all in form, content
and scope reasonably satisfactory to the Administrative Agent.


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:


 


8.01         Liens.


 


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


 


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(a)           Liens pursuant to any Loan Document;


 


(b)           Liens existing on the date hereof and listed on Schedule
8.01 and any renewals or extensions or refinancings thereof, provided
that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased, (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) any
renewal or extension or refinancing of the obligations secured or benefited
thereby is permitted by Section 8.03(b);


 


(c)           Liens (other than Liens imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet delinquent or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


(d)           statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed by
law or pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are unfiled and no
other action has been taken to enforce the same or are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;


 


(e)           pledges or deposits in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by ERISA;


 


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


 


(g)           easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;


 


(h)           Liens securing judgments for the payment of money
(or appeal or other surety bonds relating to such judgments) not constituting
an Event of Default under Section 9.01(h);


 


(i)            Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (ii) the
Indebtedness secured thereby does not exceed the cost (negotiated on an arm’s
length basis) of the property being acquired on the date of acquisition and (iii) such
Liens attach to such property concurrently with or within ninety days after the
acquisition thereof;


 


(j)            leases or subleases granted to others not
interfering in any material respect with the business of any Loan Party or any
of its Subsidiaries;


 


(k)           any interest of title of a lessor under, and Liens
arising from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases not prohibited by this
Agreement;


 


(l)            Liens deemed to exist in connection with Investments
in repurchase agreements permitted under Section 8.02;


 


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(m)          normal and customary rights of setoff upon deposits
of cash in favor of banks or other depository institutions and upon accounts in
favor of securities intermediaries;


 


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


 


(o)           Liens of sellers of goods to the Borrower and any of
its Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price for
such goods and related expenses;


 


(p)           Liens in favor
of Verisign or other ICANN accredited registry on cash deposits made pursuant
to accreditation agreements entered into in the ordinary course of business; or


 


(p)           Liens on cash used to secure letters of credit and
bank guaranties permitted under Section 8.03(h) in an
aggregate amount not to exceed $5,000,000 at any time outstanding.


 


8.02         Investments.


 


Make
any Investments, except:


 


(a)           Investments held by the Borrower or such Subsidiary
in the form of cash or Cash Equivalents;


 


(b)           Investments existing as of the Closing Date and set
forth in Schedule 8.02;


 


(c)           Investments in any Person that is a Loan Party prior
to giving effect to such Investment;


 


(d)           Investments by any Subsidiary of the Borrower that
is not a Loan Party in any other Subsidiary of the Borrower that is not a Loan
Party;


 


(e)           Investments consisting of advances or extensions of
credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;


 


(f)            Guarantees permitted by Section 8.03;


 


(g)           Permitted Acquisitions;


 


(h)           Permitted Media Content/Domain Name Acquisitions;


 


(i)            Investments in Foreign Subsidiaries in an aggregate
amount not to exceed $1,000,000 at any one time outstanding; provided, however,
additional cash Investments may be made in Foreign Subsidiaries in excess of
$1,000,000 so long as the cash used to make any such Investment is cash
received from an Equity Issuance which is then immediately used to make an
Investment in a Foreign Subsidiary following such Equity Issuance; and


 


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(j)            Investments in Subsidiaries (in the form of (i) letters
of credit for the account of any Subsidiary for which the applicable Loan Party
is obligated to reimburse the issuer thereof and/or (ii) cash advances in
an aggregate amount not to exceed $50,000 at any time outstanding with respect
to any such Subsidiary) but solely to the extent required to consummate any
Permitted Media/Domain Name Acquisition.


 


8.03         Indebtedness.


 


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


 


(a)           Indebtedness under the Loan Documents;


 


(b)           Indebtedness of the Borrower and its Subsidiaries
set forth in Schedule 8.03, and any extensions, renewals and
refinancings thereof;


 


(c)           intercompany Indebtedness permitted under Section 8.02;


 


(d)           obligations (contingent or otherwise) of the
Borrower or any Subsidiary existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held
or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;


 


(e)           purchase money Indebtedness (including obligations
in respect of Capital Leases or Synthetic Leases) hereafter incurred by the
Borrower or any of its Subsidiaries to finance the purchase of fixed assets,
and renewals, refinancings and extensions thereof, provided that (i) the
total of all such Indebtedness for all such Persons taken together shall not
exceed an aggregate principal amount of $5,000,000 at any one time outstanding;
(ii) such Indebtedness when incurred shall not exceed the purchase price
of the asset(s) financed; and (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;


 


(f)            unsecured Indebtedness of the Borrower under the
Seller Notes in an aggregate principal amount not to exceed $4,000,000 at any
time outstanding;


 


(g)           Subordinated Indebtedness in an aggregate principal
amount not to exceed $25,000,000 at any one time outstanding;


 


(h)           letters of
credit and/or bank guaranties issued on behalf of any Loan Party or any
Subsidiary in an aggregate amount not to exceed $5,000,000 at any one time
outstanding; provided, that, any such letter of credit shall only be permitted
by this clause (h) if such letter of credit is a type of letter of credit
that cannot be issued pursuant to the terms of this Agreement;


 


(i)            Guarantees by a
Loan Party or any of its Subsidiaries of the obligations of any Subsidiary
under accreditation agreements entered into in the ordinary course of business
with an ICANN accredited registry; and


 


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(j)            other unsecured
Indebtedness not to exceed $2,000,000 in the aggregate at any one time
outstanding.


 


8.04         Fundamental Changes.


 


Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12
and 7.14, (a) the Borrower may merge or consolidate with any of its
Subsidiaries provided that the Borrower shall be the continuing or surviving
corporation, (b) any Loan Party other than the Borrower may merge or
consolidate with any other Loan Party other than the Borrower, (c) any
Foreign Subsidiary may be merged or consolidated with or into any Loan Party
provided that such Loan Party shall be the continuing or surviving corporation,
(d) any Foreign Subsidiary may be merged or consolidated with or into any
other Foreign Subsidiary, (e) any
Domestic Subsidiary which is not a Loan Party may be merged or consolidated
with or into a Loan Party, (f) any Subsidiary which is not a Loan Party
may dissolve or liquidate itself; provided that prior to such
dissolution or liquidation, such Subsidiary transfer all of its assets to a
Loan Party and (g) any Subsidiary which is created solely to be used as an
acquisition vehicle for a specific Acquisition may be merged or consolidated
with or into another Person in connection with a Permitted Acquisition; provided
that the surviving Person of such merger or consolidation shall become a Loan
Party pursuant to the terms hereof.


 


8.05         Dispositions.


 


Make
any Disposition unless (i) at least 75% the consideration paid in
connection therewith shall be cash or Cash Equivalents paid contemporaneous
with consummation of the transaction and shall be in an amount not less than
the fair market value of the property disposed of, (ii) if such
transaction is a Sale and Leaseback Transaction, such transaction is not
prohibited by the terms of Section 8.15, (iii) such
transaction does not involve the sale or other disposition of a minority equity
interest in any Subsidiary (other than directors qualifying shares), (iv) such
transaction does not involve a sale or other disposition of receivables other
than receivables owned by or attributable to other property concurrently being
disposed of in a transaction otherwise permitted under this Section 8.05,
and (v) the aggregate net book value of all of the assets sold or
otherwise disposed of by the Borrower and its Subsidiaries in all such
transactions occurring during the term of this Agreement shall not exceed
$500,000.


 


8.06         Restricted Payments.


 


Declare
or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except that:


 


(a)           each Subsidiary may make Restricted Payments to the
Borrower or any  Guarantor;


 


(b)           the Borrower and each Subsidiary may declare and
make dividend payments or other distributions payable solely in the Equity
Interests of such Person;


 


(c)           The Borrower or its Subsidiaries may redeem or
repurchase Equity Interests from employees, consultants, officers and directors
(including cancellation of options or rights to acquire such Equity Interests)
on termination of employment or services of such person in an aggregate amount
not to exceed $1,000,000 in any fiscal year;


 


70

















 


(d)           each Foreign Subsidiary may make Restricted Payments
(directly or indirectly) to its parent.


 


8.07         Change in Nature of Business.


 


Engage
in any material line of business substantially different from those lines of
business conducted by the Borrower and its Subsidiaries on the Closing Date or
any business substantially related or incidental thereto.


 


8.08         Transactions with Affiliates
and Insiders.


 


Enter
into or permit to exist any transaction or series of transactions with any
officer, director or Affiliate of such Person other than (a) advances of
working capital to any Loan Party, (b) transfers of cash and assets to any
Loan Party, (c) intercompany transactions expressly permitted by Section 8.02,
Section 8.03, Section 8.04, Section 8.05 or
Section 8.06, (d) compensation arrangements consistent with
past practices and reimbursement of reasonable expenses of and indemnities to
officers and directors in the ordinary course of business and (e) except
as otherwise specifically limited in this Agreement, other transactions which
are entered into in the ordinary course of such Person’s business on terms and
conditions substantially as favorable to such Person as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director or Affiliate.


 


8.09         Burdensome Agreements.


 


(a)           Enter into, or permit to exist, any Contractual
Obligation that encumbers or restricts on the ability of any such Person to (i) pay
dividends or make any other distributions to any Loan Party on its Equity
Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation
owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) sell,
lease or transfer any of its property to any Loan Party, (v) pledge its
property pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof or (vi) act as a Loan Party
pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (i)-(v) above) for (1) this Agreement and the
other Loan Documents, (2) any document or instrument governing
Indebtedness incurred pursuant to Section 8.03(b) and Section 8.03(e),
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (3) any
Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, (4) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under
Section 8.05 pending the consummation of such sale or (5) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or any of its Subsidiaries entered into in
the ordinary course of business.


 


(b)           Enter into, or permit to exist, any Contractual
Obligation that prohibits or otherwise restricts the existence of any Lien upon
any of its property in favor of the Administrative Agent (for the benefit of
the Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation
if such property is given as security for the Obligations, except (i) any
document or instrument governing Indebtedness incurred pursuant to Section 8.03(e),
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (ii) in
connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein
relates only to the asset or assets subject to such Permitted Lien, (iii) pursuant
to customary restrictions and conditions contained in any agreement relating to
the sale of any property permitted under Section 8.05, pending the 


 


71

















 


consummation
of such sale, and (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower or any
of its Subsidiaries entered into in the ordinary course of business.


 


8.10         Use of Proceeds.


 


Use
the proceeds of any Credit Extension, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.


 


8.11         Financial Covenants.


 


(a)           Consolidated Net Senior Leverage Ratio.  Following the delivery of the Audited
Financial Statements in accordance with Section 7.01(a)(i), permit
the Consolidated Net Senior Leverage Ratio as of the end of any fiscal quarter
of the Borrower to be greater than (i) for any fiscal quarter ending
during the period from the Closing Date to and including March 31, 2010,
3.0 to 1.0, (ii) for any fiscal quarter ending during the period from April 1,
2010 to and including March 31, 2011, 2.5 to 1.0 and (iii) for any
fiscal quarter ending after March 31, 2011, 2.0 to 1.0.


 


(b)           Consolidated Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.0
to 1.0.


 


(c)           Liquidity.  Prior to the delivery of the Audited
Financial Statements in accordance with Section 7.01(a)(i), permit
the aggregate value of unrestricted cash, Cash Equivalents and availability
under the Available Revolving Committed Amount (“Liquidity”) to be less
than $15,000,000.


 


(d)           EBITDA.  Permit Consolidated EBITDA for the fiscal
year ending March 31, 2007 to be less than $13,000,000.


 


8.12         Prepayment of Other
Indebtedness, Etc.


 


Make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with
respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary
which is subordinated to Indebtedness arising under the Loan Documents.  Notwithstanding the foregoing, the Borrower (i) may
prepay any Indebtedness outstanding under the Seller Notes, provided
that (a) no Default shall have occurred and be continuing or would result
from such prepayment and (b) immediately after giving effect to such
prepayment, the Borrower shall have Liquidity totaling at least $15,000,000 and
(ii) may offset against payments due under the Seller Notes in accordance
with the terms thereof.


 


8.13         Organization Documents;
Fiscal Year; Legal Name, State of Formation and Form of Entity.


 


(a)           Amend, modify or change its Organization Documents
in a manner adverse to the Lenders.


 


(b)           Change its fiscal year to any date other than ending
at the end of the calendar year.


 


(c)           Without providing ten (10) days prior written notice
to the Administrative Agent, change its name, state of formation or form of
organization of any Loan Party.


 


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8.14         Ownership of Subsidiaries.


 


Notwithstanding
any other provisions of this Agreement to the contrary, (i) permit any
Person (other than any Loan Party or any Wholly Owned Subsidiary of the
Borrower) to own any Equity Interests of any Subsidiary of any Loan Party,
except to qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Equity
Interests of Foreign Subsidiaries, (ii) permit any Loan Party or any
Subsidiary of any Loan Party to issue or have outstanding any shares of
preferred Equity Interests (other than the Permitted Preferred Stock) or (iii) create,
incur, assume or suffer to exist any Lien on any Equity Interests of any
Subsidiary of any Loan Party, except for Permitted Liens.


 


8.15         Sale Leasebacks.


 


Enter
into any Sale and Leaseback Transaction.


 


ARTICLE IX


 


EVENTS OF DEFAULT AND
REMEDIES


 


9.01         Events of Default.


 


Any
of the following shall constitute an Event of Default:


 


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


 


(b)           Specific Covenants.  Any Loan Party fails to perform or observe
any term, covenant or agreement contained in any of Section 7.01, 7.02,
7.03, 7.05, 7.10, 7.11, 7.12, and 7.14
or Article VIII; or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty days; or


 


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


 


(e)           Cross-Default.  (i) Any Loan Party or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the 


 


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holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to
its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than the Threshold Amount; or


 


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


 


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


 


(h)           Judgments.  There is entered against any Loan Party or
any Material Subsidiary (i) one or more final judgments or orders for the
payment of money in an aggregate amount exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer
does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of ten consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of any Loan Party under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or


 


(j)            Invalidity of Loan Documents.  Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or 


 


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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 Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or


 


(k)           Change of Control.  There occurs any Change of Control.


 


9.02         Remedies Upon Event of
Default.


 


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


 


(a)           declare the commitment of each Lender to make Loans
and any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;


 


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


 


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


 


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


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


9.03         Application of Funds.


 


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


 


First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including fees,
charges and disbursements of counsel to the Administrative Agent and amounts
payable under Article III) payable to the Administrative Agent in
its capacity as such;


 


Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal,
interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders



 


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and
the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause Second
payable to them;


 


Third, to payment of that portion of the Obligations
constituting accrued and unpaid Letter of Credit Fees and interest on the Loans
and L/C Borrowings and fees, premiums and
scheduled periodic payments, and any interest accrued thereon, due under any
Swap Contract between any Loan Party and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) and the L/C Issuer in proportion to the respective
amounts described in this clause Third held by them;


 


Fourth, to (a) payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings, (b) payment
of breakage, termination or other payments,
and any interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such Swap
Contract is permitted by Section 8.03(d), (c) payments
of amounts due under any Treasury
Management Agreement between any Loan Party and any Lender, or any Affiliate of
a Lender and (d) Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably among
the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders)
and the L/C Issuer in proportion to the respective amounts described in this
clause Fourth held by them; and


 


Last, the balance, if any, after all of the Obligations
have been indefeasibly paid in full, to the Borrower or as otherwise required
by Law.


 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations, if
any, in the order set forth above.


 


ARTICLE X


 


ADMINISTRATIVE AGENT


 


10.01       Appointment and Authority.


 


Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents 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 or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.


 


10.02       Rights as a Lender.


 


The
Person 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 the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity.  Such Person and
its Affiliates may accept deposits from, lend money to, act as 


 


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the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with any Loan Party or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.


 


10.03       Exculpatory Provisions.


 


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


 


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


 


(b)           shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided
that the Administrative Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable law; and


 


(c)           shall not, except as expressly set forth herein and
in the other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to any Loan Party or any
of its Affiliates that is communicated to or obtained by the Person serving as
the 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 (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative
Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 11.01 and 9.02) or (ii) in the
absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the
L/C Issuer.


 


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 or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


10.04       Reliance by 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 (including any electronic
message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person.  The 


 


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Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Loan Parties), 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.


 


10.05       Delegation of Duties.


 


The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document 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 of its duties and exercise its rights and powers by or
through their respective Related Parties. 
The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent 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.


 


10.06       Resignation of
Administrative Agent.


 


The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the consent of the Borrower, if no Event of Default
has occurred and is continuing, such consent not to be unreasonably withheld or
delayed, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  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 retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.04
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 the retiring Administrative
Agent was acting as Administrative Agent.


 


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Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


 


10.07       Non-Reliance on
Administrative Agent and Other Lenders.


 


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


 


10.08       No Other Duties; Etc.


 


Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or the L/C Issuer hereunder.


 


10.09       Administrative Agent May File
Proofs of Claim.


 


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


 


(a)           to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations (other than obligations under Swap
Contracts or Treasury Management Agreements to which the Administrative Agent
is not a party) that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; and


 


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


 


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and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 11.04.


 


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


 


10.10       Collateral and Guaranty
Matters.


 


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


 


(a)           to release any
Lien on any Collateral granted to or held by the Administrative Agent under any
Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination or other satisfaction of all
Letters of Credit, (ii) that is transferred or to be transferred as part
of or in connection with any Disposition permitted hereunder or under any other
Loan Document or any Involuntary Disposition, or (iii) as approved in
accordance with Section 11.01 or (iv) encumbering Excluded
Property;


 


(b)           to subordinate
any Lien on any property granted to or held by the Administrative Agent under
any Loan Document to the holder of any Lien on such property that is permitted
by Section 8.01(i); and


 


(c)           to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.


 


Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or items
of property, or to release any Guarantor from its obligations under the
Guaranty, pursuant to this Section 10.10.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01       Amendments, Etc.


 


No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, further, that


 


(a)           no such amendment, waiver or consent shall:


 


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(i)            extend or increase the
Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender whose Commitment is being extended
or increased (it being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or a
mandatory reduction in Commitments is not considered an extension or increase
in Commitments of any Lender);


 


(ii)           postpone any date fixed by
this Agreement or any other Loan Document for any payment of principal
(excluding mandatory prepayments), interest, fees or other amounts due to the
Lenders (or any of them) or any scheduled or mandatory reduction of the
Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments
are to be reduced;


 


(iii)          reduce the principal of, or
the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (i) of the final proviso to this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to receive such payment of
principal, interest, fees or other amounts; provided, however,
that only the consent of the Required Lenders shall be necessary (A) to
amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate or (B) to
amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


(iv)          change Section 2.13
or Section 9.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender
directly affected thereby;


 


(v)           change any provision of this
Section 11.01(a) or the definition of “Required Lenders”
without the written consent of each Lender directly affected thereby;


 


(vi)          except in connection with a
Disposition permitted under Section 8.05, release all or
substantially all of the Collateral without the written consent of each Lender
directly affected thereby;


 


(vii)         release the Borrower or,
except in connection with a merger or consolidation permitted under Section 8.04
or a Disposition permitted under Section 8.05, all or substantially
all of the Guarantors without the written consent of each Lender directly
affected thereby; or


 


(b)           unless also
signed by the L/C Issuer, no amendment, waiver or consent shall affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it;


 


(c)           unless also
signed by the Swing Line Lender, no amendment, waiver or consent shall affect
the rights or duties of the Swing Line Lender under this Agreement; and


 


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(d)           unless also
signed by the Administrative Agent, no amendment, waiver or consent shall
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document;


 


provided, however,
that notwithstanding anything to the contrary herein, (i) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto, (ii) no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender, (iii) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes the unanimous consent
provisions set forth herein and (iv) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.


 


11.02       Notices and Other
Communications; Facsimile Copies.


 


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


 


(i)            if to the
Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 11.02;
and


 


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


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


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


 


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


 


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


 


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


 


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


 


(e)           Reliance by Administrative Agent, L/C Issuer and
Lenders.  The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of any Loan Party even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Loan Parties shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of a Loan Party.  All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


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11.03       No Waiver; Cumulative
Remedies.


 


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


 


11.04       Expenses; Indemnity; and
Damage Waiver.


 


(a)           Costs and Expenses.  The Loan Parties 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, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
L/C Issuer in connection with the issuance, amendment, renewal 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, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees
and time charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)           Indemnification by the Loan Parties.  The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all
fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by the Borrower or any other Loan Party arising out of,
in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by a Loan Party or any of its Subsidiaries, or any
Environmental Liability related in any way to a Loan Party 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, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or
in part, out of the comparative, contributory or sole negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee,
be 


 


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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 (x) from the gross negligence or
willful misconduct of such Indemnitee or (y) from a breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document.


 


(c)           Reimbursement by Lenders.  To the extent that the Loan Parties for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b) of
this Section to be paid by them to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, 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 any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)           Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, no Loan Party shall assert, and each Loan Party 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, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof.  No
Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby.


 


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


 


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


 


11.05       Payments Set Aside.


 


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


 


85

















 


effect.  The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


11.06       Successors and Assigns.


 


(a)           Successors and Assigns Generally.  The provisions of this Agreement and the
other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder or thereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of
this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void).  Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:


 


(i)            Minimum Amounts.


 


(A)          in the case of
an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)           in any case not
described in subsection (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000  unless each of
the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met;


 


(ii)           Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section and,
in addition:


 


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(A)          the consent of
the Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;


 


(B)           the consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment to a Person that is not a Lender,
an Affiliate of such Lender or an Approved Fund with respect to such Lender;


 


(C)           the consent of
the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall
be required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not
then outstanding); and


 


(D)          the consent of
the Swing Line Lender (such consent not to unreasonably withheld or delayed)
shall be required for any assignment to a Person that is not a Lender, an
Affiliate of such Lender or an Approved Fund with respect to such Lender.


 


(iii)          Assignment and
Assumption.  The parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee in
the amount of $3,500; provided, however, that the Administrative
Agent may, in its sole discretion, elect to wave such processing and
recordation fee in the case of any assignment. 
The assignee, if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


(iv)          No Assignment
to Borrower.  No such
assignment shall be made to the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.


 


(v)           No Assignment
to Natural Persons.  No such
assignment shall be made to a natural person.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the assignee thereunder shall
be a party to this Agreement and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection 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 subsection (d) of this Section.


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be


 


87

















 


conclusive, and the Borrower, the Administrative Agent 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 and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the other
Lenders and the L/C Issuer shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
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, waiver or other
modification described in clauses (i) through (vii) of the Section 11.01(a) that
affects such Participant.  Subject to
subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)           Limitation on Participant Rights.  A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.  A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 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 3.01(e) as
though it were a Lender.


 


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


 


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


 


(h)           Resignation as L/C Issuer or Swing Line Lender after
Assignment. 
Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty days’
notice to the 


 


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Borrower
and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice
to the Borrower, resign as Swing Line Lender. 
In the event of any such resignation as L/C Issuer or Swing Line Lender,
the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be.  If Bank of America resigns as
L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (2) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.


 


11.07       Treatment of Certain
Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives and to any
direct or indirect contractual counterparty (or such contractual counterparty’s
professional advisor) under any Swap Contract relating to Loans outstanding
under this Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to a Loan Party and its
obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.


 


For
purposes of this Section, “Information” means all information received
from a Loan Party or any Subsidiary relating to the Loan Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or
any Subsidiary, provided that, in the case of information received from
a Loan Party or any Subsidiary 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


 


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obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


 


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


 


11.08       Set-off.


 


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


 


11.09       Interest Rate Limitation.


 


Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


11.10       Counterparts; Integration;
Effectiveness.


 


This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 5.01,
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 that, when taken together, bear the 


 


90

















 


signatures
of each of the other parties hereto. 
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.


 


11.11       Survival of Representations
and Warranties.


 


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


 


11.12       Severability.


 


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


 


11.13       Replacement of Lenders.


 


If
(i) any Lender requests compensation under Section 3.04, (ii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or (iii) a Lender (a “Non-Consenting Lender”) does not consent to a
proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 11.01
but requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) and, or (iv) any Lender is a Defaulting Lender, or
(v) any Lender is unable to make or maintain Eurodollar Rate Loans then
the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:


 


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


 


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


 


91

















 


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


 


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


 


(e)           in the case of
any such assignment resulting from a Non-Consenting Lender’s failure to consent
to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund
consents to the proposed change, waiver, discharge or termination; provided
that the failure by such Non-Consenting Lender to execute and deliver an
Assignment and Assumption shall not impair the validity of the removal of such
Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s
Commitments and outstanding Loans and participations in L/C Obligations and
Swing Line Loans pursuant to this Section 11.13 shall nevertheless
be effective without the execution by such Non-Consenting Lender of an
Assignment and Assumption.


 


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


 


11.14       Governing Law; Jurisdiction;
Etc.


 


(a)           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


(b)           SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS 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 ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT.  EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER
OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


92

















 


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


 


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


 


11.15       Waiver of Right to Trial by
Jury.


 


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


 


11.16       USA PATRIOT Act Notice.


 


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


 


11.17       No Advisory or Fiduciary
Relationship.


 


In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document, the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and BAS, are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and
BAS, on the other hand, (B) the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and BAS each is and has been acting 


 


93

















 


solely
as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not and will not be acting as an advisor, agent or
fiduciary, for the Borrower or any of Affiliates or any other Person and (B) neither
the Administrative Agent nor BAS has any obligation to the Borrower or any of
its Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents;
and (iii) the Administrative Agent and BAS and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor BAS has any obligation to disclose any of such
interests to the Borrower or its Affiliates. 
To the fullest extent permitted by law, the Borrower hereby waives and
releases, any claims that it may have against the Administrative Agent or BAS
with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


 


[SIGNATURE PAGES FOLLOW]


 


94

















 


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


 


	
  BORROWER:

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  DEMAND
  DOMAINS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM
  VENTURES, INC.,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEMAND
  ANSWERS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRAILS.COM, INC.,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EHOW, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  



 


DEMAND MEDIA, INC.


CREDIT AGREEMENT


 

















 


	
   

  	
  DEMAND
  ENTERTAINMENT, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOT
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  YOUSTART, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM, INCORPORATED,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WOU3, INCORPORATED,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WHOIS
  PRIVACY PROTECTION SERVICES, INC.,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy Mavrinac

  
	
   

  	
  Name:

  	
  Wendy Mavrinac

  
	
   

  	
  Title:

  	
  President,
  Treasurer and Secretary

  



 


DEMAND MEDIA, INC.


CREDIT AGREEMENT


 

















 


	
   

  	
  SECURE
  BUSINESS SERVICES, INC.,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy Mavrinac

  
	
   

  	
  Name:

  	
  Wendy Mavrinac

  
	
   

  	
  Title:

  	
  President,
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE

  	
   

  
	
  AGENT:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ken Puro

  
	
   

  	
  Name:

  	
  Ken
  Puro

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  a Lender, Swing Line Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Julie Yamauchi

  
	
   

  	
  Name:

  	
  Julie
  Yamauchi

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark Gronich

  
	
   

  	
  Name:

  	
  March Gronich

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERICA
  BANK,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bonnie Kehe

  
	
   

  	
  Name:

  	
  Bonnie
  Kehe

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILICON
  VALLEY BANK,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark Turk

  
	
   

  	
  Name:

  	
  Mark
  Turk

  
	
   

  	
  Title:

  	
  Senior
  Relationship Manager

  



 


DEMAND MEDIA, INC.


CREDIT AGREEMENT


 

















 


	
   

  	
  CIBC, INC.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George Knight

  
	
   

  	
  Name:

  	
  George
  Knight

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
  CIBC
  Inc.

  



 


DEMAND MEDIA, INC.


CREDIT AGREEMENT


 














 


FIRST
AMENDMENT TO CREDIT AGREEMENT


 


THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of July 2,
2007 (the “Agreement”) is entered into among Demand Media, Inc., a
Delaware corporation (the “Borrower”), the Guarantors, the Lenders party
hereto and Bank of America, N.A., as Administrative Agent.  All capitalized terms used herein and not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS, the Borrower, the Guarantors, the Lenders and
the Administrative Agent entered into that certain Credit Agreement dated as of
May 25, 20007 (as amended and modified from time to time, the “Credit
Agreement”);


 


WHEREAS, THE Borrower has requested that the Lenders
amend the Credit Agreement as set forth below;


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants 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.             Effective
Date.  The
effective date of the Agreement shall be May 25, 2007.


 


2.             Amendment
to Credit Agreement.  Section 7.14(b)(i) of the Credit
Agreement is hereby amended to read as follows:


 


“(i) Cause all of the owned and leased
real and personal property of any Loan Party other than Excluded Property to be
subject at all times to first priority, perfected and, in the case of real
property (whether leased or owned), title insured Liens in favor of the
Administrative Agent, for the benefit of the Lenders, to secure the Obligations
pursuant to the terms and conditions of the Collateral Documents or, with
respect to any such property acquired subsequent to the Closing Date, such
other additional security documents as the Administrative Agent shall reasonably
request, subject in any case to Permitted Liens and”


 


2.             Conditions
Precedent.  This Amendment shall be effective upon the
receipt by the Administrative Agent of counterparts of this Amendment duly
executed by the Borrower, the Guarantors, the Required Lenders and Bank of
America, N.A., as Administrative Agent.


 


3.             Miscellaneous.


 


(a)           The
Credit Agreement and the obligations of the Loan Parties thereunder and under
the other Loan Documents, are hereby ratified and confirmed and shall remain in
full force and effect according to their terms.


 


(b)           Each
Guarantor (a) acknowledges and consents to all of the terms and conditions
of this Agreement, (b) affirms all of its obligations under the Loan
Documents and (c) agrees that this Agreement and all documents executed in
connection herewith do not operate to reduce or discharge its obligations under
the credit Agreement or the other Loan Documents.


 


(c)           The
Borrower and the Guarantors hereby represent and warrant as follows:


 


DEMAND
MEDIA


FIRST
AMENDMENT


 

















 


(i)            Each Loan Party has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.


 


(ii)           This Agreement has been duly executed and delivered by the Loan Parties
and constitutes each of the Loan Parties’ legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may be
subject to (A) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors’ rights
generally and (B) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).


 


(iii)          No consent, approval, authorization or order of, or filing, registration
or qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by any Loan
Party of this Agreement.


 


(d)           The
Loan Parties represent and warrant to the Lenders that (i) the
representations and warranties of the Loan Parties set forth in Article VI
of the Credit Agreement and in each other Loan Document are true and correct in
all material respects as of the date hereof with the same effect as if made on
and as of the date hereof, except to the extent such representations and
warranties expressly relate solely to an earlier date and (ii) no event
has occurred and is continuing which constitutes a Default or an Event of
Default.


 


(e)           This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument.  Delivery of
an executed counterpart of this Agreement by telecopy shall be effective as an
original and shall constitute a representation that an executed original shall
be delivered.


 


(f)            THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERENED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


[Signature pages follow]


 


DEMAND
MEDIA


FIRST
AMENDMENT


 

















 


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


 


	
  BORROWER:

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
  DEMAND
  DOMAINS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM
  VENTURES, INC.,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEMAND
  ANSWERS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRAILS.COM, INC.,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EHOW, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  



 


DEMAND
MEDIA


FIRST
AMENDMENT


 

















 


	
   

  	
  DEMAND
  ENTERTAINMENT, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOT
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  YOUSTART, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM, INCORPORATED,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary r

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WOU3, INCORPORATED,

  
	
   

  	
  a
  Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WHOIS
  PRIVACY PROTECTION SERVICES, INC.,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  



 


DEMAND
MEDIA


FIRST
AMENDMENT


 

















 


	
   

  	
  SECURE
  BUSINESS SERVICES, INC.,

  
	
   

  	
  a
  Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PAGEWISE.COM, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sarah Akhtar

  
	
   

  	
  Name:

  	
  Sarah
  Akhtar

  
	
   

  	
  Title:

  	
  Asst.
  Secretary

  



 


DEMAND
MEDIA


FIRST
AMENDMENT


 

















 


	
  ADMINISTRATIVE

  	
   

  
	
  AGENT:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ken Puro

  
	
   

  	
  Name:

  	
  Ken
  Puro

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  a Lender, Swing Line Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Julie Yamauchi

  
	
   

  	
  Name:

  	
  Julie
  Yamauchi

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL
  BANK OF CANADA,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark S. Gronich

  
	
   

  	
  Name:

  	
  Mark
  S. Gronich

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERICA
  BANK,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  W. S. Lemmer

  
	
   

  	
  Name:

  	
  W.
  S. Lemmer

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILICON
  VALLEY BANK,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jack Garza

  
	
   

  	
  Name:

  	
  Jack
  Garza

  
	
   

  	
  Title:

  	
  Relationship
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CIBC, INC.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George Knight

  
	
   

  	
  Name:

  	
  George
  Knight

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
  CIBC
  INC.

  



 


DEMAND
MEDIA


FIRST
AMENDMENT


 














 


SECOND AMENDMENT TO CREDIT AGREEMENT AND
WAIVER


 


THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER dated as of February 28,
2008 (the “Agreement”) is entered into among Demand Media, Inc., a
Delaware corporation (the “Borrower”), the Guarantors, the Lenders party
hereto and Bank of America, N.A., as Administrative Agent.  All capitalized terms used herein and not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS,
the Borrower, the Guarantors, the Lenders and the Administrative Agent entered
into that certain Credit Agreement dated as of May 25, 2007 (as amended
and modified from time to time, the “Credit Agreement”);


 


WHEREAS,
the Borrower has notified the Administrative Agent and the Lenders of its
intention to acquire the capital stock of Pluck Corporation, a Delaware
corporation through a reverse triangular merger (such transaction, the “Pluck
Acquisition”);


 


WHEREAS,
in connection with the Pluck Acquisition, the Borrower has requested that the
Lenders provide the waivers, consent and amendments set forth below;


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants 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.             Waivers.  The Administrative Agent and the Lenders
hereby agree that (a) the Loan Parties shall not be required to comply
with the terms of Section 8.11(b) of the Credit Agreement as
of the fiscal quarters ending March 31, 2008, June 30, 2008 and September 30,
2008 and (b) notwithstanding anything to the contrary in the definition of
“Permitted Investments” or elsewhere, the Borrower shall not be required to
demonstrate that the Loan Parties are in compliance with Section 8.11(b) of
the Credit Agreement on a Pro Forma Basis after giving effect to the Pluck
Acquisition; provided that the Borrower demonstrates that the Loan
Parties are in compliance with Section 8.11(a) of the Credit
Agreement on a Pro Forma Basis and fully complies with all other terms and
conditions set forth in the definition of Permitted Acquisition with respect to
the Pluck Acquisition. The above waivers shall not modify or affect the Loan
Parties’ obligations to comply fully with the terms of Section 8.02
and Section 8.11(b) of the Credit Agreement or any other duty,
term, condition or covenant contained in the Credit Agreement or any other Loan
Document in the future.  These waivers
are limited solely to the waivers specifically provided for in the first
sentence of this Section 1, and nothing contained in this Agreement shall
be deemed to constitute a waiver of any other rights or remedies the
Administrative Agent or any Lender may have under the Credit Agreement or any
other Loan Document or under applicable law.


 


2.             Consent.  Notwithstanding the terms of Section 8.04
of the Credit Agreement, the Lenders hereby agree that the Borrower may
dissolve eNom Ventures, Inc. (“eNom”), Wou3, Inc. (“Wou3”)
and meNom, Inc. (“meNom”, and collectively with eNom and Wou3, the “Dissolved
Subsidiaries”) as part of its corporate reorganization; provided,
that prior to any such dissolution of any Dissolved Subsidiary, all assets of
such Dissolved Subsidiary are transferred to a Loan Party.  Upon dissolution, eNom and Wou3 will each no
longer be Loan Parties or Guarantors. This consent is limited solely to the
consent specifically provided for in the preceding sentence, and nothing
contained in this


 

















 


Agreement
shall be deemed to constitute a consent by the Administrative Agent or the
Lenders to any other item under the Credit Agreement or any other Loan Document
or under applicable law.


 


3.             Amendments.  The Credit Agreement is hereby amended as
follows:


 


(a)           Section 1.01 of the Credit Agreement is hereby
amended by adding the following defined term in appropriate alphabetical order:


 


“Pluck Seller Note” means that certain
Unsecured Promissory Note made by the Borrower in favor of the lenders
identified therein providing for payment-in-kind interest only of not greater
than 7% per annum and a maturity date of no less than thirteen months from the
effective date of such note and no later than eighteen months from the
effective date of such note.


 


(b)           Section 8.02 of the Credit Agreement is hereby
amended by deleting the period at the end thereof and adding the following text
“; and” and by adding a new subsection 8.02(k) at the end of Section 8.02
of the Credit Agreement which shall read as follows:


 


(k)           any other Investments by the Borrower or any
Domestic Subsidiary; provided that (i) the amount of all such
Investments permitted by this Section 8.02(k) shall not exceed
$5,000,000 in the aggregate at any time outstanding and (ii) no
Investments made pursuant to this Section 8.02(k) shall be
made in any Foreign Subsidiary or non-U.S. assets.


 


(c)           Section 8.03
of the Credit Agreement is hereby amended by deleting the period at the end
thereof and adding the following text “; and” and by adding a new subsection
8.03(k) at the end of Section 8.03 of the Credit Agreement which
shall read as follows:


 


(k)           unsecured Indebtedness of the Borrower under the
Pluck Seller Note in an aggregate principal amount not to exceed $10,000,000
plus any accumulated pay-in-kind or capitalized interest thereon.


 


(d)           Clause (c) in
Section 8.08 is hereby amended and restated in its entirety to read as
follows:


 


(c) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04,
Section 8.05 or Section 8.06 and any transactions
permitted by Section 8.02(k),


 


(e)           Section 8.11(d) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


(d)           EBITDA.  Permit Consolidated EBITDA to be less than (i) $17,500,000,
for the twelve-month period ending March 31, 2008 (ii) $18,500,000,
for the twelve-month period ending June 30, 2008, and (iii) $20,500,000,
for the twelve-month period ending September 30, 2008.


 


4.             Conditions
Precedent.  This
Agreement (other than Section 1 and Sections 3(a), 3(c) and 3(e))
shall be effective upon the receipt by the Administrative Agent of (a) counterparts
of this Agreement duly executed by the Borrower, the Guarantors, the Required
Lenders and Bank of America,


 

















 


N.A.,
as Administrative Agent and (b) all fees and expenses due and payable in
connection with this Agreement.   Section 1
and Sections 3(a), 3(c) and 3(e) of this Agreement shall be effective
upon (c) the satisfaction of the conditions precedent identified in
clauses (a) and (b) above and (d) the consummation of the Pluck
Acquisition in accordance with its terms on or before March 31, 2008.


 


5.             Miscellaneous.


 


(a)           The Credit Agreement, as modified hereby, and the
obligations of the Loan Parties thereunder and under the other Loan Documents,
are hereby ratified and confirmed and shall remain in full force and effect
according to their terms.


 


(b)           Each Guarantor
(a) acknowledges and consents to all of the terms and conditions of this
Agreement, (b) affirms all of its obligations under the Loan Documents as
modified hereby and (c) agrees that this Agreement and all documents
executed in connection herewith do not operate to reduce or discharge its
obligations under the Credit Agreement or the other Loan Documents except as
expressly set forth herein.


 


(c)           The Borrower and the Guarantors hereby represent and
warrant as follows:


 


(i)            Each Loan Party has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement.


 


(ii)           This Agreement has been duly
executed and delivered by the Loan Parties and constitutes each of the Loan
Parties’ legal, valid and binding obligations, enforceable in accordance with
its terms, except as such enforceability may be subject to (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (B) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity).


 


(iii)          No consent, approval,
authorization or order of, or filing, registration or qualification with, any
court or governmental authority or third party is required in connection with
the execution, delivery or performance by any Loan Party of this Agreement.


 


(d)           The Loan
Parties represent and warrant to the Lenders that (i) the representations
and warranties of the Loan Parties set forth in Article VI of the
Credit Agreement and in each other Loan Document are true and correct in all
material respects as of the date hereof with the same effect as if made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate solely to an earlier date and (ii) no event has occurred
and is continuing which constitutes a Default or an Event of Default.


 


(e)           This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of this
Agreement by telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.


 

















 


(f)            THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


[Signature
pages follow]


 

















 


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


 


	
  BORROWER:

  	
  DEMAND MEDIA, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
  DEMAND DOMAINS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM VENTURES, INC.,

  
	
   

  	
  a Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Stahura

  
	
   

  	
  Name:

  	
  Paul Stahura

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEMAND ANSWERS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HILLCLIMB MEDIA, INC.
  f/k/a TRAILS.COM, INC.,

  
	
   

  	
  a Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  



 


SECOND AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
   

  	
  EHOW, INC.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEMAND
  ENTERTAINMENT, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOT MEDIA, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  YOUSTART, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM, INCORPORATED,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Stahura

  
	
   

  	
  Name:

  	
  Paul Stahura

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WOU3, INCORPORATED,

  
	
   

  	
  a Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Stahura

  
	
   

  	
  Name:

  	
  Paul Stahura

  
	
   

  	
  Title:

  	
  President

  



 


SECOND AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
   

  	
  WHOIS PRIVACY PROTECTION
  SERVICES, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine Eppes

  
	
   

  	
  Name:

  	
  Kristine Eppel

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECURE BUSINESS
  SERVICES, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine Eppes

  
	
   

  	
  Name:

  	
  Kristine Eppel

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PAGEWISE.COM, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shawn Colo

  
	
   

  	
  Name:

  	
  Shawn Colo

  
	
   

  	
  Title:

  	
  Secretary

  



 


SECOND AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
  ADMINISTRATIVE

  	
   

  
	
  AGENT:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ken Puro

  
	
   

  	
  Name:

  	
  Ken Puro

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender, Swing Line
  Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Julie Yamauchi

  
	
   

  	
  Name:

  	
  Julie Yamauchi

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark S. Gronich

  
	
   

  	
  Name:

  	
  Mark S. Gronich

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERICA BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. S. Lemmer

  
	
   

  	
  Name:

  	
  W. S.
  Lemmer

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILICON VALLEY BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Turk

  
	
   

  	
  Name:

  	
  Mark Turk

  
	
   

  	
  Title:

  	
  Senior Relationship
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CIBC, INC.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Gewirtz

  
	
   

  	
  Name:

  	
  Michael Gewirtz

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
  CIBC INC.

  



 


SECOND AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
   

  	
  TORONTO DOMINION (TEXAS)
  LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Debbi L. Brito

  
	
   

  	
  Name:

  	
  Debbi L. Brito

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


SECOND AMENDMENT TO CREDIT
AGREEMENT


 














 


THIRD AMENDMENT TO CREDIT AGREEMENT


 


THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated as of April 24,
2008 (the “Agreement”) is entered into among Demand Media, Inc., a
Delaware corporation (the “Borrower”), the Guarantors, the Lenders party
hereto and Bank of America, N.A., as Administrative Agent.  All capitalized terms used herein and not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS,
the Borrower, the Guarantors, the Lenders and the Administrative Agent entered
into that certain Credit Agreement dated as of May 25, 2007 (as amended
and modified from time to time, the “Credit Agreement”);


 


WHEREAS,
the Borrower has notified the Administrative Agent and the Lenders that it has
changed its fiscal year end from March 31 to December 31 beginning December 31,
2007; and


 


WHEREAS,
the Borrower has requested that the Lenders provide the amendment set forth
below;


 


NOW, THEREFORE, in consideration of the premises and the mutual covenants
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.             Amendment.  Section 7.01(a)(ii) of the Credit
Agreement is hereby amended to read as follows:


 


(i)            with respect to each fiscal year thereafter, upon
the earlier of the date that is 120 days after the end of each fiscal year of
the Borrower or the date such information is filed with the SEC, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of PricewaterhouseCoopers LLP or other independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit, except that the Loan
Parties must satisfy the requirements of this Section 7.01(a)(ii) of
the Credit Agreement for the nine-month period ending December 31, 2007
(instead of the twelve-month period) and must satisfy the requirements no later
than July 31, 2008; and


 


2.             Conditions Precedent.  This Agreement shall be effective upon the
receipt by the Administrative Agent of counterparts of this Agreement duly
executed by the Borrower, the Guarantors, the Required Lenders and Bank of
America, N.A., as Administrative Agent.


 


 

















 


3.             Miscellaneous.


 


(a)           The Credit Agreement, as modified hereby, and the
obligations of the Loan Parties thereunder and under the other Loan Documents,
are hereby ratified and confirmed and shall remain in full force and effect
according to their terms.


 


(b)           Each Guarantor
(a) acknowledges and consents to all of the terms and conditions of this
Agreement, (b) affirms all of its obligations under the Loan Documents as
modified hereby and (c) agrees that this Agreement and all documents
executed in connection herewith do not operate to reduce or discharge its
obligations under the Credit Agreement or the other Loan Documents except as
expressly set forth herein.


 


(c)           The Borrower and the Guarantors hereby represent and
warrant as follows:


 


(i)            Each Loan Party has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement.


 


(ii)           This Agreement has been duly
executed and delivered by the Loan Parties and constitutes each of the Loan
Parties’ legal, valid and binding obligations, enforceable in accordance with
its terms, except as such enforceability may be subject to (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (B) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity).


 


(iii)          No consent, approval,
authorization or order of, or filing, registration or qualification with, any
court or governmental authority or third party is required in connection with
the execution, delivery or performance by any Loan Party of this Agreement.


 


(d)           The Loan
Parties represent and warrant to the Lenders that (i) the representations
and warranties of the Loan Parties set forth in Article VI of the
Credit Agreement and in each other Loan Document are true and correct in all
material respects as of the date hereof with the same effect as if made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate solely to an earlier date and (ii) no event has occurred
and is continuing which constitutes a Default or an Event of Default.


 


(e)           This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of this
Agreement by telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.


 


(f)            THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 

















 


[Signature pages follow]


 

















 


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


 


	
  BORROWER:

  	
  DEMAND MEDIA, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah A. Cooper

  
	
   

  	
  Name:

  	
  Sarah A. Cooper

  
	
   

  	
  Title:

  	
  Asst. Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
  HILLCLIMB MEDIA, INC.
  f/k/a TRAILS.COM, INC.,

  
	
   

  	
  a Washington corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah A. Cooper

  
	
   

  	
  Name:

  	
  Sarah A. Cooper

  
	
   

  	
  Title:

  	
  Asst. Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOT MEDIA, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah A. Cooper

  
	
   

  	
  Name:

  	
  Sarah A. Cooper

  
	
   

  	
  Title:

  	
  Asst. Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENOM, INCORPORATED,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah A. Cooper

  
	
   

  	
  Name:

  	
  Sarah A. Cooper

  
	
   

  	
  Title:

  	
  Asst. Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WHOIS PRIVACY PROTECTION
  SERVICES, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy A. Mavrinac

  
	
   

  	
  Name:

  	
  Wendy A. Mavrinac

  
	
   

  	
  Title:

  	
  President

  



 


Third Amendment


 

















 


	
   

  	
  SECURE BUSINESS
  SERVICES, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy A. Mavrinac

  
	
   

  	
  Name:

  	
  Wendy A. Mavrinac

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PLUCK CORPORATION, a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah A. Cooper

  
	
   

  	
  Name:

  	
  Sarah A. Cooper

  
	
   

  	
  Title:

  	
  Asst. Secretary

  



 


Third Amendment


 

















 


	
  ADMINISTRATIVE

  	
   

  
	
  AGENT:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ken Puro

  
	
   

  	
  Name:

  	
  Ken Puro

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  LENDERS:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender, Swing Line
  Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Julie Yamauchi

  
	
   

  	
  Name:

  	
  Julie Yamauchi

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Suzanne Kaicher

  
	
   

  	
  Name:

  	
  Suzanne Kaicher

  
	
   

  	
  Title:

  	
  Attorney–In–Fact

  
	
   

  	
   

  	
  Royal Bank of Canada

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. S. Lemmer

  
	
   

  	
  Name:

  	
  W. S.
  Lemmer

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILICON VALLEY BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Hughes

  
	
   

  	
  Name:

  	
  Stephen Hughes

  
	
   

  	
  Title:

  	
  Sr. Relationship Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CIBC, INC.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Gewirtz

  
	
   

  	
  Name:

  	
  Michael Gewirtz

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
  CIBC INC.

  



 


Third Amendment


 

















 


	
   

  	
  TORONTO DOMINION (TEXAS)
  LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robyn Zeller

  
	
   

  	
  Name:

  	
  Robyn Zeller

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Third Amendment


 














Exhibit 2.02


 


FORM OF LOAN NOTICE


 


Date: 
                    ,
20


 


To:          Bank of America, N.A., as
Administrative Agent


 


Re:          Credit Agreement dated as of May 25, 2007 (as
amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among Demand Media, Inc., a Delaware corporation (the “Borrower”),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer.  Capitalized terms
used but not otherwise defined herein have the meanings provided in the Credit
Agreement.


 


Ladies
and Gentlemen:


 


The
undersigned hereby requests (select one):


 


o  A Borrowing of Revolving Loans


 


o  A conversion or continuation of Revolving
Loans


 


1.             On
                              ,
20       (which is a Business Day).


 


2.             In the amount of
$                    .


 


3.             Comprised of
                            
(Type of Loan requested).


 


4.             For Eurodollar Rate Loans:
with an Interest Period of                     
months.


 


The
Borrower hereby represents and warrants that (a) after giving effect to any
Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not
exceed the Available Revolving Committed Amount, and (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Commitment and (b) each of the
conditions set forth in Section 5.02 of the Credit Agreement has been
satisfied or waived on and as of the date of such Borrowing, conversion or
continuation.


 


 


	
   

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 














Exhibit 2.04


 


FORM OF SWING LINE LOAN NOTICE


 


Date:
                    ,
20


 


To:          Bank of America, N.A., as
Swing Line Lender


 


Cc:          Bank of America, N.A., as
Administrative Agent


 


Re:                               Credit Agreement dated as of
May 25, 2007 (as amended, modified, supplemented or extended from time to
time, the “Credit Agreement”) among Demand Media, Inc., a Delaware
corporation (the “Borrower”), the Guarantors from time to time party
thereto, the Lenders from time to time party thereto and Bank of America, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit Agreement.


 


Ladies
and Gentlemen:


 


The
undersigned hereby requests a Swing Line Loan:


 


1.             On           , 20    
(a Business Day).


 


2.             In the amount of
$                    .


 


With
respect to such Borrowing of Swing Line Loans, the Borrower hereby represents
and warrants that (a) after giving effect to such Borrowing of Swing Line
Loans, (i) the Total Revolving Outstandings shall not exceed the Available
Revolving Committed Amount, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Commitment and (b) each of
the conditions set forth in Section 5.02 of the Credit Agreement
has been satisfied or waived on and as of the date of such Borrowing of Swing
Line Loans.


 


 


	
   

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 














EXHIBIT 2.11(a)(i)


 


FORM OF REVOLVING NOTE


 


 


 


FOR
VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay
to
                                          
or registered assigns (the “Lender”), in accordance with the provisions
of the Credit Agreement (as hereinafter defined), the principal amount of each
Revolving Loan from time to time made by the Lender to the Borrower under that
certain Credit Agreement dated as of May 25, 2007 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among the Borrower, the Guarantors from time to time party thereto, the Lenders
from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. 
Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.


 


The
Borrower promises to pay interest on the unpaid principal amount of each
Revolving Loan from the date of such Revolving Loan until such principal amount
is paid in full, at such interest rates and at such times as provided in the
Credit Agreement.  All payments of
principal and interest shall be made to the Administrative Agent for the
account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office.  If any
amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum
rate set forth in the Credit Agreement.


 


This
Revolving Note is one of the Revolving Notes referred to in the Credit
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein.  Upon the occurrence and continuation of one or
more of the Events of Default specified in the Credit Agreement, all amounts
then remaining unpaid on this Revolving Note shall become, or may be declared
to be, immediately due and payable all as provided in the Credit
Agreement.  Revolving Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Revolving Note and endorse thereon the date, amount and
maturity of its Revolving Loans and payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Revolving Note.


 


THIS
REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.


 


 


	
   

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 














EXHIBIT 2.11(a)(ii)


 


FORM OF SWING LINE NOTE


 


 


 


FOR
VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay
to BANK OF AMERICA, N.A. or registered assigns (the “Swing Line Lender”),
in accordance with the provisions of the Credit Agreement (as hereinafter
defined), the principal amount of each Swing Line Loan from time to time made
by the Swing Line Lender to the Borrower under that certain Credit Agreement
dated as of May 25, 2007 (as amended, modified, supplemented or extended from
time to time, the “Credit Agreement”) among the Borrower, the Guarantors
from time to time party thereto, the Lenders from time to time party thereto
and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.  Capitalized terms used but not
otherwise defined herein have the meanings provided in the Credit Agreement.


 


The
Borrower promises to pay interest on the unpaid principal amount of each Swing
Line Loan from the date of such Swing Line Loan until such principal amount is
paid in full, at such interest rates and at such times as provided in the
Credit Agreement.  All payments of
principal and interest shall be made to the Administrative Agent for the
account of the Swing Line Lender in Dollars in immediately available funds at
the Administrative Agent’s Office.  If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Credit Agreement.


 


This
Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. 
Upon the occurrence and continuation of one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Swing Line Note shall become, or may be declared to be, immediately due
and payable all as provided in the Credit Agreement.  Swing Line Loans made by the Swing Line
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Swing Line Lender may also
attach schedules to this Swing Line Note and endorse thereon the date, amount
and maturity of its Swing Line Loans and payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Swing Line Note.


 


THIS
SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.


 


 


	
   

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 














Exhibit 7.02


 


FORM OF COMPLIANCE CERTIFICATE


 


Financial
Statement Date:
                    ,
20


 


To:          Bank of America, N.A., as
Administrative Agent


 


Re:                               Credit Agreement dated as of
May 25, 2007 (as amended, modified, supplemented or extended from time to time,
the “Credit Agreement”) among Demand Media, Inc., a Delaware corporation
(the “Borrower”), the Guarantors from time to time party thereto, the
Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit Agreement.


 


Ladies
and Gentlemen:


 


The undersigned Responsible Officer hereby certifies on behalf of the
Borrower as of the date hereof that [he/she] is the
                              
of the Borrower, and that, in [his/her] capacity 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 the fiscal year-end financial
statements:]


 


[1.            Attached hereto as Schedule 1
are the year-end audited financial statements required by Section 7.01(a) of
the Credit Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of KPMG or other independent
certified public accountant required by such section.]


 


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


 


[1.            Attached hereto as Schedule 1
are the unaudited financial statements required by Section 7.01(b) of
the Credit Agreement for the fiscal quarter of the Borrower ended as of the
above date.  Such financial statements
fairly present in all material respects the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in all material
respects in accordance with GAAP as at such date and for such period, subject
only to normal year-end audit adjustments and the absence of footnotes.]


 


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


 


3.             A review of the activities
of the Borrower 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 performed and observed all its Obligations under the Loan Documents,
and


 


[select
one:]


 


[to
the best knowledge of the undersigned during such fiscal period, the Borrower
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 and its nature and status:]


 


4.             The representations and
warranties of the Loan Parties contained in the Credit Agreement or any other
Loan Document, are true and correct in all material respects 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
in all material respects as of such earlier date, and except that for purposes
of this Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 6.05 of the Credit
Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01
of the Credit Agreement, including the statements in connection with which this
Compliance Certificate is delivered.


 


5.             The financial covenant
analyses and calculation of the Consolidated Fixed Charge Coverage Ratio and
the Consolidated Net Senior Leverage Ratio set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this
Certificate.


 


                IN WITNESS
WHEREOF, the undersigned has executed this Certificate as of
                    ,
20      .


 


 


	
   

  	
  DEMAND
  MEDIA, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 














Exhibit 7.12


 


FORM OF JOINDER AGREEMENT


 


THIS
JOINDER AGREEMENT (the “Agreement”) dated as of
                    ,
20       is by and between
                    ,
a
                    
(the “New Subsidiary”), and Bank of America, N.A., in its capacity as
Administrative Agent under that certain Credit Agreement dated as of May 25,
2007 (as amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among Demand Media, Inc., a Delaware corporation (the “Borrower”),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer.  Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.


 


The
Loan Parties are required by Section 7.12 of the Credit Agreement
to cause the New Subsidiary to become a “Guarantor” thereunder.  Accordingly, the New Subsidiary hereby agrees
as follows with the Administrative Agent, for the benefit of the Lenders:


 


1.             The New
Subsidiary hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the New Subsidiary will be deemed to be a party to the Credit
Agreement and a “Guarantor” for all purposes of the Credit Agreement, and shall
have all of the obligations of a Guarantor thereunder as if it had executed the
Credit Agreement.  The New Subsidiary
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions applicable to the Guarantors contained in the
Credit Agreement.  Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary
hereby jointly and severally together with the other Guarantors, guarantees to
each Lender and the Administrative Agent, as provided in Article IV
of the Credit Agreement, the prompt payment and performance of the Obligations
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.


 


2.             The New
Subsidiary hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the New Subsidiary will be deemed to be a party to the Security
Agreement and a “Grantor” for all purposes of the Security Agreement, and shall
have all the obligations of a Grantor thereunder as if it had executed the
Security Agreement.  The New Subsidiary
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions contained in the Security Agreement.  Without limiting the generality of the
foregoing terms of this paragraph 2, the New Subsidiary hereby grants to the
Administrative Agent, for the benefit of the Secured Parties, a continuing
security interest in, and a right of set off against, any and all right, title
and interest of the New Subsidiary in and to the Collateral (as defined in the
Security Agreement) of the New Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations (as defined in the Security
Agreement).


 


3.             The New
Subsidiary hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the New Subsidiary will be deemed to be a party to the Pledge
Agreement and a “Pledgor” for all purposes of the Pledge Agreement, and shall
have all the obligations of a Pledgor thereunder as if it had executed the
Pledge Agreement.  The New Subsidiary
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions contained in the Pledge Agreement.  Without limiting the generality of the
foregoing terms of this paragraph 3, the New Subsidiary hereby grants, pledges
and assigns to the Administrative Agent, for the benefit of the Secured
Parties, a continuing security interest in, and a right of set off against, any
and all right, title and interest of the New Subsidiary in and to the Equity
Interests identified on Schedule 6 hereto and all other Pledged
Collateral (as defined in the Pledge Agreement) of the New Subsidiary to secure
the prompt payment and


 

















 


performance
in full when due, whether by lapse of time, acceleration, mandatory prepayment
or otherwise, of the Secured Obligations (as defined in the Pledge Agreement).


 


4.             The New
Subsidiary hereby represents and warrants to the Administrative Agent and the
Lenders that as of the date hereof:


 


(a)           The New Subsidiary’s exact legal name and state of
formation are as set forth on the signature pages hereto.


 


(b)           The New Subsidiary’s taxpayer identification number
and organization number are set forth on Schedule 1 hereto.


 


(c)           Other than as set forth on Schedule 2 hereto,
the New Subsidiary has not changed its legal name, changed its state of
formation, been party to a merger, consolidation or other change in structure
or used any tradename in the five years preceding the date hereof.


 


(d)           Schedule 3 hereto includes all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses of patents, trademarks and copyrights to New Subsidiary,
and other intellectual property rights (collectively, “IP Rights”)
registered or pending registration with the United States Copyright Office or
the United States Patent and Trademark Office and owned by the New Subsidiary
as of the date hereof (other than off-the-shelf software licenses).  None of the IP Rights of the New Subsidiary
set forth in Schedule 3 hereto is subject to any licensing agreement or
similar arrangement, except as set forth on Schedule 3 hereto.


 


(e)           Schedule 4 hereto includes all
Commercial Tort Claims pending before any Governmental Authority by or in favor
of the New Subsidiary.


 


(f)            Schedule 5 hereto lists all real
property located in the United States that is owned or leased by the New
Subsidiary as of the date hereof.


 


(g)           Schedule 6 hereto includes each
Subsidiary of the New Subsidiary, including (i) jurisdiction of formation,
(ii) number of shares of each class of Equity Interests outstanding, (iii) the
certificate number(s) of the certificates evidencing such Equity Interests
and number and percentage of outstanding shares of each class owned by the New
Subsidiary (directly or indirectly) of such Equity Interests and (iv) number
and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto.


 


5.             The address of
the New Subsidiary for purposes of all notices and other communications is the
address designated for all Loan Parties on Schedule 11.02 to the Credit
Agreement or such other address as the New Subsidiary may from time to time
notify the Administrative Agent in writing.


 


6.             The New
Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders
of the guaranty by the New Subsidiary under Article IV of the
Credit Agreement upon the execution of this Agreement by the New Subsidiary.


 


7.             This Agreement
may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.


 


8.             THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.


 

















 


IN
WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be
duly executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.


 


	
   

  	
   

  	
  [NEW
  SUBSIDIARY]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Acknowledged
  and accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.,

  	
   

  	
   

  
	
  as
  Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 














Exhibit 11.06


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This
Assignment and Assumption (this “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 have the meanings provided in the Credit
Agreement identified below, 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 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, without limitation, the Letters of Credit and the
Swing Line Loans and the 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,
but not limited to, 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]]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  Demand
  Media, Inc., a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  Bank
  of America, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement:

  	
   

  	
  Credit
  Agreement dated as of May 25, 2007 (as amended, modified, supplemented
  or extended from time to time, the “Credit Agreement”) among the
  Borrower, the Guarantors from time to time party thereto, the Lenders from
  time to time party thereto and Bank of America, N.A., as Administrative
  Agent, Swing Line Lender and L/C Issuer.

  



 

















 


6.             Assigned Interest:


 


	
  Facility
  Assigned(1)

  	
   

  	
  Aggregate Amount of

  Commitment/Loans

  for all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned(2)

  	
   

  	
  Percentage Assigned of 

  Commitment/Loans(3)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  7.

  	
   

  	
  Trade
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Effective
  Date:

  	
   

  	
   

  	
   

  



 


 


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


 


	
  ASSIGNOR:

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  ASSIGNEE:

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 






(1) 
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”)


(2) 
Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.


(3) 
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Lenders thereunder.


 

















 


	
  [Consented
  to and](4) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.,

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  Consented
  to:

  	
   

  
	
   

  	
   

  
	
  DEMAND
  MEDIA, INC.,

  	
   

  
	
  a
  Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented
  to:] (5)

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.,

  	
   

  
	
  as
  L/C Issuer

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  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 L/C Issuer is required by the terms of
the Credit Agreement.


 

















 


Annex 1 to Assignment and Assumption


 


STANDARD TERMS AND CONDITIONS


 


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 meets the requirements to be an assignee under Section 11.06(b)(iv) and
(v) of the Credit Agreement (subject to such consents, if any, as may be
required under Section 11.06(b)(ii) of the Credit Agreement), (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 is
sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising
discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy
of the Credit Agreement, and has received or has been accorded the opportunity
to receive copies of the most recent financial statements delivered pursuant to
Section 7.01 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest, (vi) 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 Assignment and Assumption and to purchase the
Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto 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.